Freedom of Speech and the IHRA in Universities

Submission by Free Speech on Israel
to the Parliamentary Joint Committee on Human Rights’
Inquiry into Freedom of Expression

1. Free Speech on Israel is a Jewish-led group formed in April 2016 out of concerns that the surge in accusations of antisemitism in British public life inno way reflected the reality in which we live.

Evidence to 2018 Inquiry

2. Free Speech on Israel (FSOI) gave oral and written evidence to the Joint Committee’s 2018 inquiry into Freedom of Speech in Universities. In the current submission we will concentrate only on the question: How has the situation changed in universities in the two years since the Committee’s report on the issue?
3. Our evidence in 2018 focussed on the negative effects of the governmental adoption of the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism on freedom of expression in universities as a microcosm of its broader impact.
4. The proposals for action in FSOI’s 2018 submission were:
5. Government to withdraw its seriously misguided adoption of the IHRA ‘definition’ of antisemitism, now shown to be inaccurately promoted
6. Public bodies to cease adopting any version of this ‘definition’ for local use

• Universities UK to issue guidance to member universities emphasising their managements’ need to prioritise their statutory obligations under UK law to protect freedom of speech and assembly

1. Universities UK to collect data on the organised disruption of campus events dealing with Israel/Palestine, and to propose appropriate strategies by which universities can preserve the freedom to discuss the issues raised by the Israel/Palestine situation.

However developments in the last 2 years have moved in the opposite direction.

The IHRA documents

5. What is commonly referred to as ‘The IHRA Definition’ is in fact two separate documents – a rather inexplicit 39 words of definition, and a set of 11 examples of statements that could, “taking into account the overall context”, be antisemitic. Seven of those examples reference Israel, and most of these are problematic. Furthermore in versions circulated by the organisation We Believe in Israel the words specifying context-dependence were removed. This illegitimate wording was adopted by significant UK local authorities, including the Greater London Assembly and the Greater Manchester Combined Authority. This doctored version has no authority.
6. The documents now known as the IHRA definition were originally prepared in 2004 for the European Union Monitoring Centre on Racism and Xenophobia though not adopted by it. They were then known together, after the acronym of that organisation, as the EUMC definition. Its chief author Kenneth Stern is on record as saying of the strikingly vague 39 words that

That part was suggested by somebody else I didn’t know. I thought of it as a preamble, it doesn’t really say much. It says like, you know, sexism is a perception of women.

7. It seems that in 2016 the two parts were adopted by IHRA as separate documents. That is, the definition does not directly reference the examples or vice versa. Their presentation on the IHRA website is calculatedly ambiguous on this point.

Legal standing of the definition

8. Many commentators have observed that the wording of the illustrative examples, by implying racist intent to otherwise legitimate criticisms of the state of Israel, conflates anti-Zionism (a political standpoint) with antisemitism (racism against Jews). Hugh Tomlinson QC’s opinion on the IHRA definition stresses that:

• it has no legal standing in the UK;
• public bodies have statutory duties to respect and ensure the right of freedom of expression and assembly; and
• that reliance on this document to ban or restrict events which are thought to be ‘anti-Israel’ but which express no hatred of Jews would be unlawful.

Geoffrey Robertson QC’s  legal opinion makes still stronger criticisms.

9. Freedom of speech and expression within the law is generally protected by the Human Rights Act 1998, section 6. There is an additional duty on universities enacted in the Education Act 1986 “to take such steps as is reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees… and visiting speakers.”

The Secretary of State for Education’s instruction

10. In October 2020 the Secretary of State for Education Gavin Williamson threatened English Universities with financial consequences if they failed to adopt the IHRA definition by Christmas 2020. It was reported that this would be implemented by directing the Office for Students to withhold funding streams from non-compliant institutions. We believe that neither the minister nor OfS have powers to do this; threatening universities in this way is an entirely illegitimate tactic.
11. A recent letter signed by distinguished lawyers including two retired Lord Justices of Appeal says that the legally entrenched right to free expression is being undermined by use of the IHRA definition, which it describes as “internally incoherent”. They say its “impact on public discourse both inside and outside universities has already been significant”, and urge that Mr Williamson’s threat be withdrawn.
12. We concur. It is surely unprecedented for a Government Minister to instruct autonomous higher education institutions on the mechanisms they should employ in internal disciplinary processes, the more so as his instructions in effect require them to violate their statutory duties (see para 9).

The effect of the IHRA definition on the higher education sector.

13. The existence of antisemitic behaviour on campus has been documented recently by the Community Security Trust (CST). It stresses that the ‘vast majority’ of Jewish students have a strongly positive experience at university. The report records an increase in antisemitic incidents in the two preceding years, but acknowledged that this reflected “a sustained drive by CST’s campus team to encourage students to report antisemitic incidents”. A recent report by a working party of the UCL Academic Board also confirms a degree of low-level verbal antisemitic comments.
14. FSOI deplores any manifestations of antisemitism. But it accepts that its elimination from any area of life is impossible to achieve, and that ‘zero tolerance’ approaches can be counter-productive. We favour educational rather than punitive approaches wherever possible and especially where the use of antisemitic tropes is the only evidence.
15. The concealed obverse of this coin is an ongoing and accelerating flow of allegations that lectures, research and social media posts of university staff are antisemitic. The emerging pattern is of complaints by students aided by advice including legal support from outside organisations. The allegations frequently reach the mainstream media, which amplify them. Often the allegations explicitly cite the IHRA definition as authority for the antisemitic nature of the text or activity complained of.
16. The two external organisations principally involved are UK Lawyers for Israel (UKLfI), and the Campaign Against Antisemitism (CAA). Both are registered charities. In March 2020 UKLFI made an out-of-court settlement with Defense for Children International Palestine after accusing it in blog posts and letters to donors of being a “terror-linked” organisation. CAA was established in 2014 explicitly to defend Israel from criticism during its ongoing assault on Gaza. The Charities Commission is currently reviewing its status following complaints. The cases of alleged antisemitism taken up focus significantly, though not entirely, on statements involving Palestine/Israel.
17. In the current atmosphere such complaints tend to trigger formal disciplinary processes, bypassing informal stages. An investigation is launched, often progressing to the establishment of a committee to examine and decide on the allegation. More than one such disciplinary process is ongoing as this submission is being prepared. In one case at least a complaint from a single source has targeted several staff members at the same university; it cites the IHRA definition, and is based on extensive data scraping requiring specialist technical capabilities. Faculty members are being required to remain silent, and for this reason we are unable to supply details in this public document.
18. The number of staff members who have been subject to these complaints and procedures to date is relatively small. In each case whose outcome we know, the complaint has been found to have no validity. However the effect of such a process on the individual targeted can be substantial: it is not an experience that anyone would wish to repeat. And the effect goes well beyond the targeted individual, as others become apprehensive about the possibility of finding themselves at the centre of a media storm.
19. It is not only individual academics who are affected. In our evidence to the 2018 Inquiry we referred to the cancellation of an international conference at the University of Southampton. (It was held without incident more than a year later at the University of Cork.) We also referred to a dossier demonstrating the range of obstacles that UK universities have put in the way of student meetings with a pro-Palestinian focus. There is no record of similar restrictions on events with an Israel-supporting agenda.
20. The principal drafter of what became the IHRA definition is Kenneth Stern, who for 25 years was the American Jewish Committee’s antisemitism expert. In 2017 in evidence to a US congressional committee he deplored the misuse of that definition as a tool to target or chill speech on college campuses. He called it not just misuse, but abuse. A leading British scholar of antisemitism Professor David Feldman has reinforced this view: “the chilling impact on students, on academic and professional staff and on institutions dedicated to debate and robust discussion, will be corrosive and long lasting”.
21. The Chair of the Equalities and Human Rights Commission Baroness Falkner has recently added her voice to the growing chorus of dissent with the government’s attempt in effect to impose the IHRA definition on universities. She found the definition to be “extremely poorly worded” and “probably unactionable in law”, adding that “it directly conflicts with the duty on universities to protect free speech”.
22. The use that is being made of the IHRA definition to foreclose certain classes of legally permitted expression is deeply inimical to the preservation of citizens’ right to free expression. As Baroness Falkner put it “the end route if we go down this road, is that there is no space left where students may learn to disagree with each other respectfully”.

Alternative approaches

23. The current censorious climate, and some universities’ willingness to bend before the prevailing wind, is having a noticeable effect on freedom of expression on Palestine and Israel. But, as the recent magisterial report of a Working Party set up by the Academic Board at University College London noted, it can have little effect on the prevailing sub-culture of low-level antisemitic behaviour and expression. To impact that a collective institutional effort is needed to clarify the bases of antisemitism and other forms of racism, an effort which makes positive use of the university’s intellectual and other resources to produce a comprehensive action-based educational plan.
24. As the report states, our current trajectory caries the risk that members of the academic community “will be anxious about crossing a line when discussing topics like Israel and Palestine, engendering an environment that conflicts with a university’s role in expanding public knowledge, challenging received wisdom, and fostering discussions which might at times make some people feel uncomfortable.”