Free Speech Union: Monthly Newsletter

Dear Mike Buchanan,

Free Speech Union challenges chief constables over Lady of Heaven failures

On 3rd June, The Lady of Heaven, an independent film about the daughter of the Prophet Mohammed, was released in cinemas across the UK, including at venues owned by Cineworld, Showcase and Vue and immediately prompted noisy protests. The Bolton Council of Mosques called the film “blasphemous”, the Muslim Council of Britain described the film as “divisive”, and the UK Muslim website 5Pillars called the film “pure, unadulterated filth”. Cinemas in Bradford, Leeds, Sheffield, Bolton, Blackburn, Birmingham and Stratford were targeted by aggressive protests from some Muslims demanding the film not be screened.

Cineworld subsequently pulled The Lady of Heaven from all its venues, and, shortly after, Showcase followed suit.

The Free Speech Union has written to four chief constables about their failure to uphold people’s right to see The Lady of Heaven. We’ve published one of them on our website – to the Chief Constable of West Yorkshire Police, John Robins QPM, concerning the protests in Bradford and Leeds (which were among the most intimidating in the country). The others we’ve written to are the chief constables of South Yorkshire Police, West Midlands Police and Greater Manchester Police.

There are serious legal issues at stake here, and the letter is well worth a read. In brief, for the reasons set out in detail in the letter, we believe these police forces failed to meet their lawful obligations to police the protests proportionately, and thereby secure the right of local people to see the film, as well as the right of the film’s producers to show their film, and the right of Cineworld and Showcase to screen the film. Specifically, we believe that these forces breached the Article 10 rights of the cinema chains, who wished to show the film, and of the cinema-goers, who wished to see the film.

We further believe it would be open to those parties to bring proceedings against these police forces under section 7 of the Human Rights Act and we will provide such assistance as we deem reasonable to any party that seeks our help in bringing such proceedings. In advance of any pre-action letter under the pre-action protocol for judicial review, which will trigger a duty of candour, we have requested a response from the chief constables to a series of questions no later than 13th July.

Hatun Tash arrested

While we’re on the subject of the police’s failure to uphold free speech, Hatun Tash, the evangelical Christian preacher and FSU member, was arrested at Speakers’ Corner last Sunday, the third time she’s been arrested in two years. A large number of officers were involved, and she was forcibly removed from the scene with her arms held behind her back. Hatun was then taken to Charing Cross police station, strip searched, interviewed, kept overnight in a cell and then released without charge.

To cap it all, the day she was released – Monday, 27th June – was the 150th anniversary of Speakers’ Corner. We have written to the Acting Commissioner of the Metropolitan Police, Sir Stephen House, asking him to justify this appalling treatment and, if he cannot, to apologise to Hatun. We’ve also put the following questions to the Acting Commissioner: First, has any investigation been undertaken into the robbery that Ms Tash suffered in the minutes before she was arrested; and second, has any investigation been undertaken to identify the individual who attempted to assault her while she was being arrested?

You can read that letter on our website.

FSU writes to Nadhim Zahawi and Michelle Donelan

I’ve written to the Secretary of State for Education, Nadhim Zahawi, and the Minister for Universities, Michelle Donelan, to thank them for introducing two essential amendments to the Higher Education (Freedom of Speech) Bill, both of which we campaigned for: first, removing the caveat “within their field of expertise” from Clause 1, so the new free speech protections in the Bill apply to academics regardless of whether they’re speaking or writing about something within their field of expertise or not; and second, making it harder for “security costs” to be cited by universities or student unions to justify no-platforming a controversial speaker. We were also pleased to see Ms Donelan confirm in the House that temporary and visiting academic staff will be shielded by the Bill’s additional protections, another thing we’ve been campaigning for.

You can read the letter in full here.

The FSU’s new briefing paper on the Higher Education (Freedom of Speech) Bill

The Higher Education Bill had its second reading in the House of Lords last week, and it was heartening to see the Free Speech Union’s casework and policy briefings being mentioned in the debate.

In a terrific speech that made the case for the Bill, Baroness Fox noted that “it is not being cancelled but the process of being accused and investigated that has become the punishment, leaving a stigma and a question mark on one’s reputation. You have only to look at the case files of Academics for Academic Freedom or the Free Speech Union to get the gist.” Sadly true. As I pointed out in the Mail earlier this month, we “get about a dozen requests for help a week from university students or academics who’ve got into trouble for exercising their lawful right to free speech”. We’ve intervened in hundreds of cases and in almost every one of those the individuals concerned would have been in a stronger position had the new law been in place.

Earlier in the debate, Baroness Hoey said that she was “sure that amendments will come through your Lordships’ House… many of which have been suggested by what I consider to be the excellent Free Speech Union”. The amendments the Baroness was referring to here are set out in our recently published briefing paper, where we revisit the original case for the legislation, welcome the fact that the Government has accepted two of the amendments we’ve been campaigning for, reiterate the arguments for those amendments, and make the case for six new amendments that we think will improve the Bill, making its new free speech protections even more robust. You can read that document in full here.

Over the next few weeks and months, we’re looking forward to engaging with the FSU’s allies in both houses of Parliament to ensure that the final version of the Bill contains as many of these amendments as possible.

FSU-led amendment to the Police, Crime Sentencing and Courts Act to rein in NCHIs

Non-crime hate incidents were back in the news last month, after Wiltshire Police opened a file when an 11-year-old boy was called “shorty” in the street by another boy (Sun, GB News, Mail).

We’ve been pointing out for a long time that NCHIs are a sinister form of thought-policing (our briefing document is here, and our handy FAQs on how to get an NCHI expunged from your record is here). According to the College of Policing (CoP) guidelines drawn up in 2014, NCHIs are any non-criminal act of hostility towards someone with a ‘protected’ characteristic that’s perceived to be motivated by hatred of that characteristic. They can be reported by the victim or by anyone who witnessed the incident and are recorded irrespective of whether there is any objective evidence to identify the hate element. NCHIs can then show up in an enhanced criminal records checks, which could affect the ability of the name-calling young boy in Wiltshire to get a job or enrol on an apprenticeship course.

Still, at least he appears to know that he’s been given one, which means he’s one of the ‘lucky’ NCHI holders. That’s because police forces in England and Wales aren’t required to notify someone if an NCHI is recorded against their name – and the police are continuing to log ‘non crimes’ in the same way, in spite of the Court of Appeal declaring the CoP’s guidance unlawful in a landmark case brought by Harry Miller. Given that an estimated 250,000 NCHIs have been recorded in England and Wales since 2014, it’s likely that hundreds of thousands of people still unwittingly carry one around on their records.

However, it looks like there may now be some good news on the horizon. The FSU worked with a group of peers to propose an amendment to the Police, Crime, Sentencing and Courts Act 2022. This amendment will enable the Home Secretary to issue statutory guidance concerning the recording and retention of NCHI data by the police which would supersede the CoP’s guidance – and we know from a subsequent FOI request that Priti Patel is going to avail herself of that option. Assuming she issues the guidance we think she will, NCHIs will only be recorded against people’s names in future and the information stored in police databases in exceptional circumstances. You can find the amendment at Section 61 of the Act here.

National coverage of the FSU’s victory in battle with Worcester College, Oxford

The Telegraph carried news of a huge victory for the Free Speech Union in its long-running battle with Worcester College, Oxford this month (the story was subsequently picked up by other news outlets, including The Critic, Epoch Times, Christian Institute and Christian Post).

The College has now admitted it “misled” students after capitulating to an activist mob back in 2021 and cancelling a Christian event that had been due to take place on its campus. Worcester College, run by David Isaac, the former Chair of LGBTQ+ charity Stonewall (2003-12) and the Equality and Human Rights Commission (2016-20), had previously apologised to students for hosting a Christian Concern summer school – known as the Wilberforce Academy. Mr Isaac then proceeded to cancel a second booking after a small number of students complained that they had been “distressed” by the presence of the Academy on campus last summer. In what the Mail described at the time as an example of cancel culture in Britain’s universities, Worcester College emailed students to acknowledge that the booking “was a serious failure that has caused significant distress” and promised never to allow the Wilberforce Academy to come back.

I first wrote to Mr Isaac in September 2021, pointing out that to exclude a group from holding an event on the College’s premises because of its Christian beliefs would be a breach of the Equality Act 2010: “Under section 29(1) of that Act, Worcester’s response to student distaste at the Wilberforce Academy seems to amount, quite openly, to a policy of discrimination.” You can read my letter, along with Mr Issac’s response, here.

In March of this year, an independent review found “no evidence” for the allegations made by a fellow of the College, that “aggressive leafleting” had taken place and that conference attendees had made “unsolicited approaches” to staff and students to discuss controversial opinions on LGBT conversation therapy (Telegraph). As the review made clear, the College acted on these complaints despite staff and students being unable to locate copies of the leaflets, and despite Christian Concern stating that no leaflets had in fact been distributed.

Following the report’s publication, I wrote again to Mr Isaac, asking him to retract his apology, and lift the ban he imposed on further bookings by the Academy. I also pointed out that “we continue to stand by Christian Concern and will provide whatever legal and financial assistance we deem appropriate should this matter escalate”. You can read that letter here.

After these warnings, the College eventually admitted that it was “misleading to suggest that Conference delegates or representatives of Christian Concern acted improperly in an email to students in September 2021”.

In a joint statement issued with Christian Concern, both parties reaffirmed their mutual commitment “to the right to freedom of speech and religious belief and the dignity of all people”. In a world where “differing views are strongly and sincerely held”, the statement added, “it is important to come together and listen to each other. To that end, Worcester has invited Christian Concern to speak at a debate which will take place as soon as can be arranged.”

As I pointed out in the Telegraph, “the mistake Worcester College made was to immediately capitulate to the demands of an activist mob and ban a group from its premises without properly investigating the allegations against it. Sadly, we see this kind of institutional cowardice again and again, particularly in the higher education sector, usually motivated by a desire for a quiet life. As this case neatly demonstrates, the way to force such institutions to take their responsibility to uphold free speech more seriously is to make it clear that organisations like ours will create an almighty fuss if they don’t.”

Oxford University changes harassment rules in free speech row

As reported in the Times Higher Education this month, the FSU has been helping a group of nine senior academics formally petition the University of Oxford to reform its policies and protect free speech and academic freedom in accordance with the law. The question under Part 5 of the Congregation Regulations 2 of 2002, has now appeared in the University’s journal of record, the Oxford Gazette (here).

Currently, Oxford professors are expected to adhere to the university’s harassment policy and its guidance on social media use, which requires “all members of the university community… to treat each other with respect, courtesy and consideration in all forms of communication with one another”. The purpose of putting the question to the University’s Council was not, of course, to allow harassment or encourage incivility – the FSU believes that the University should have power to restrain destructive and gratuitously abusive conduct. The concern is more that the requirement for colleagues “to treat each other with respect, courtesy and consideration”, while reasonable, is, as per the question in the Oxford Gazette, “legally baseless” because “speech that lacks respect, professionalism, etc., is still free speech within the law”. As a “matter of principle”, the question states, “the policy of the University – as an institution founded on tolerance, free thought and free expression – should in all circumstances be more liberal and open-minded than the policy of social media platforms”.

The question to the University’s council, along with the Council’s reply, was published in the Oxford Gazette on 9th June, and Bryn Harris, the FSU’s Chief Legal Counsel, and Karolien Celie, our Legal Officer, have now written about this in an article for the Oxford Journal entitled ‘The Faltering State of Academic Freedom’. As the title suggests, they’re not particularly impressed by the University Council’s reply to the academics’ question. “Despite benefitting from the advice of a QC,” they write, the Council’s reply “could charitably be described as ‘thin’… prompt[ing] many questions, and answer[ing] none” (p. 5). They go on to note that the question “was an opportunity for the University to vindicate its position by setting out clearly those elusive legal grounds on which its policies can be justified”, and its failure to do so must “give rise to the inference that it has failed to identity such grounds because they do not exist” (p. 6).

You can read Bryn and Karolien’s article here.

Briefing paper on the Bill of Right

Following a Government consultation which the FSU contributed to, the Government has introduced a Bill of Rights Bill in the form of a Parliamentary bill. If passed, it will repeal the Human Rights Act 1998 (HRA) and introduce a new framework for domestic implementation of the European Convention on Human Rights (ECHR). The Free Speech Union has just published its briefing on the Bill, which you can find here. We’re pleased to see that the Government took up several of our suggestions and intends to re-establish freedom of speech as the pre-eminent right on which all other rights are based. That said, we have reservations about the way in which the Government proposes to safeguard that right. We’ve flagged up the Bill’s proposed exceptions to the application of the right, and the effective immunity from scrutiny granted to legislation, as areas for improvement. You can read the briefing here.

New Scottish web page

Back in April, the FSU opened a Scottish office due to overwhelming demand from its Scottish members. Last month saw the launch of our new Scottish webpage, which you can see here. Not only does the page showcase the work the FSU is already doing on behalf of its Scottish members, it also acts as a first point of contact for Scottish members – or prospective members – concerned that they’re being penalised for exercising their lawful right to free speech. As Fraser Hudghton, our Director of Case Management and the Director of FSU Scotland, notes, “There are specific challenges in Scotland with devolved legislation and it’s vitally important Scots know that we are there to provide help when they need it most.”

FAQs on what to do if you are asked to declare your preferred gender pronouns

We have been contacted by many members recently asking what to do about the fact that their employer has asked them to declare their gender pronouns, usually on a lanyard or name badge, or in their email signatures. Consequently, we thought it would be useful to pull together some FAQs on this issue.

As with so many free speech issues, there are some legal protections for employees who do not wish to declare their gender pronouns, but there are also some legal justifications employers can cite for trying to get them to do so, namely, the Equality Act 2010. Then again, the Equality Act also provides some protection for employees if they’re being discriminated against on the basis of their religious or philosophical beliefs, such as the belief that sex is binary and fixed. So it’s complicated. The bottom line is that if you’ve been asked to publicly declare your gender pronouns by your manager or boss and you believe you might suffer a detriment if you refuse to do so, you should contact a member of our case team.

FSU South Africa is launched!

The FSU is delighted to announce the launch of the Free Speech Union South Africa (FSU SA). The FSU SA is a much-needed organisation.

Free speech in South Africa is protected by Section 16(2) of the Constitution. The limits to free speech in that document, as FSU SA points out, are not too restrictive. And yet, the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 has markedly increased the grounds on which free speech can be limited. The recently proposed Prevention and Combating of Hate Crimes and Hate Speech Bill is also now seeking to criminalise insulting, offensive and hurtful speech, with penalties of up to three years in jail – as the FSU SA makes clear, it’s not that offensive speech shouldn’t be challenged, it’s simply that no-one should have a legal right not to offended.

It’s in this context that FSU SA will promote free speech, criticise restrictions of it and assist, where possible, anyone whose freedom of speech and freedom of opinion is under attack, or anyone whose employment by or membership of an institution has been terminated because of their exercise of free speech.

You can see the FSU SA’s website here.

General fighting fund

This month we’ve helped people from all walks of life, with cases ranging from people being kicked off social media for questioning trans ideology, to members losing their jobs and livelihoods for comments made outside of work. People contact us every week who never imagined they’d need our support. Help us to help them: if you can, please donate to our general fighting fund.

Sharing the newsletter

As with all our work, this newsletter depends on the support of our members and donors, so if you’re not already a paying member please sign up today or encourage a friend to join, and help us turn the tide against cancel culture. You can share our newsletters on social media with the buttons below to help us spread the word. If someone has shared this newsletter with you and you’d like to join the FSU, you can find our website here.

Kind regards,

Toby Young

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