Dear Mike Buchanan,
Welcome to the FSU’s weekly newsletter, our round-up of the free speech news of the week. 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.
Lady of Heaven cancellations – a request for information
As reported in a previous newsletter, the FSU has written to four chief constables about their failure to uphold people’s right to see The Lady of Heaven, as well as the right of cinemas to show it. We’ve published one of them on our website – to the Chief Constable of West Yorkshire Police, John Robins QPM, concerning the Muslim protests outside cinemas 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.
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 the de facto censorship imposed by the mobs outside the cinemas breached the Article 10 rights of the cinema chains, who wished to show the film, and of the cinemagoers, 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.
However, if we are to have any chance of a viable legal challenge, we need to be able to show there were affected parties. With that in mind, we would like to hear from anyone who: a) would like to screen the film going forward; b) had to cancel a screening; c) went to a cinema but couldn’t watch the film due to the protests outside; or d) wanted to attend but couldn’t because of the protests/because the film was pulled.
Allison Bailey’s employment tribunal victory for free speech in the workplace
Barrister Allison Bailey has won (important parts of) her employment tribunal case, successfully arguing that she was discriminated against on the grounds of her ‘gender critical’ beliefs at the Garden Court Chambers (GCC) set (Times, BBC, CapX).
The remote, six-week tribunal brought us the spectacle of rowdy hearings, an “ill-disciplined” member of the remote audience being disconnected for insulting counsel (as reported by Legal Cheek), and esteemed barristers stumbling over pronouns while asking questions about ‘girldick’ and bearded ladies. Don’t be fooled by the trivialities, though, warned Jo Bartosch for Spiked: the implications of this case for free speech in and outside the workplace “are deadly serious”.
The “emotional heart of the case”, as the ruling put it, was the fact that Ms Bailey holds ‘gender critical’ beliefs, namely, that someone’s sex is biological, immutable and cannot be conflated with their gender identity. If gender critical beliefs are at all controversial, it’s because the object of their ‘criticism’ is a particular theory of gender held by organisations like Stonewall, namely, that sex is fluid – a social construct, just like gender. (On these debates, see the Critic).
On one side of the philosophical argument that played out during the tribunal, then, were Ms Bailey and the LGB Alliance, the organisation she helped found in opposition to Stonewall. On the other, were Allison’s chambers, GCC, and Stonewall, the charity behind the Diversity Champions Programme that GCC joined back in 2018.
Neither Stonewall nor GCC disputed that gender critical views were a protected characteristic – that point had already been established in the landmark employment tribunal case brought by Maya Forstater. (Unherd). Rather, GCC’s claim had specifically to do with the language used by Allison in relation to Stonewall’s gender ideology – or “gender extremism” as she described it in the Tweet that led GCC to launch an investigation. Its argument was that the words Allison had chosen to use while expressing her views weren’t protected by the Equality Act 2010. As Andrew Hochhauser QC, acting for GCC, said in a written submission, the law distinguishes “between a protected belief and the manner in which it is expressed. There is no licence to abuse.” (Guardian).
The language in question appeared in two tweets that Bailey was asked by GCC to remove from her personal Twitter account, one thanking the Times for reporting on the “coercion” driving Stonewall’s agenda, the other suggesting that a Stonewall employee ran workshops that had as their sole aim the coaching of heterosexual men who identified as lesbians on how to coerce young lesbians into having sex with them. (Both tweets appear in full in Julie Bindel’s piece for Unherd).
In the end, the panel found that all of Bailey’s pleaded beliefs, not just the already protected belief that “woman is sex not gender” but the additional beliefs she expressed in those tweets – that Stonewall wanted to replace sex with gender identity, that the absolutist tone of its advocacy of gender self-identity made it complicit in threats against women, and that it eroded women’s rights and lesbian same-sex orientation – also constituted protected philosophical beliefs under the Equality Act 2010. (Express). In one remarkable passage, the judgment states that these beliefs “were genuine”, that they “amounted to beliefs, not just opinions which might then change with further evidence” and that “the claimant does not have to be correct, or have evidence to show this…”
The significance of this ruling for free speech in the workplace is clear. Following the judgement, Allison warned that from now on, “organisations who put ‘Stonewall Law’ before Equality law or seek to silence others from lawfully voicing their criticism of Stonewall may be acting unlawfully and will suffer the consequences”. Kate Barker, Head of the LGB Alliance, concurred, telling GB News that “employers must now review their relationships not only with Stonewall but with any of the large number of lookalike groups”.
Dr Tony Sewell finally receives an honorary degree… from Buckingham University
Former government ‘race tsar’ Dr Tony Sewell received an honorary degree from Buckingham University in recognition of his work with Generating Genius, the charity he founded to help disadvantaged black children get into higher education. (Times). The honour comes months after Dr Sewell was embroiled in what the Mail describe as a “cancel culture row” when a similar offer was withdrawn by Nottingham University. Explaining the decision, a university spokesperson said at the time that because Sewell had become “the subject of political controversy”, his presence on campus would “overshadow” graduation ceremonies and upset students.
Sewell, who was then the chair of the Commission on Race and Ethnic Disparities, had received widespread criticism and abuse after the Commission published a report that concluded that Britain, while far from perfect, was not “institutionally racist”. Recalling the treatment meted out to Sewell on the day of the report’s release, Tom Slater argued that Nottingham had “joined the pile-on”. (Spectator). Dr Sewell wasn’t impressed either, telling the Mail how he had previously believed that “the work of a university was to deal with complex issues, [but that] universities in England are like the Soviet Union. There is no free speech.”
The FSU wrote to the Equality and Human Rights Commission about Nottingham’s U-turn, asking it to investigate whether the University discriminated against Sewell for voicing “views which, in the minds of some, black people ought not to hold”. A group of 50 Conservative MPs also wrote to the University, highlighting the “absurdity” of granting honorary degrees to disgraced former Malaysian PM Najib Razak and Uighur re-education camp denying ex-Chinese ambassador Liu Xiaoming while refusing to give one to Sewell, “simply because he earned the ire of a few frustrated ideologues for his widely welcomed work” on the Government’s race report. (Mail).
Announcing Buckingham’s decision, Vice-Chancellor James Tooley said he had been impressed by Dr Sewell’s charitable work, as well as the government review. Professor Tooley was quick to make clear that “the University of Buckingham is conferring the honorary degree on Dr Tony Sewell on the basis of merit alone”, although he appears not to have been able to resist the opportunity to make oblique reference to the wider context in which that conferral was taking place. “It is worth noting,” he added, “that the University is proud of its commitment to free speech and academic freedom.” Ouch.
Free speech and the Conservative Party leadership – have your say
Last week, the FSU launched a campaign to get supporters who are also members of the Conservative Party to use our new campaigning tool to email the candidates in the Conservative leadership election and urge them to do more to protect free speech. After all, one of them will be our next Prime Minister and this is our best shot at extracting a commitment from them that they’ll do everything in their power to defend free speech when they reach 10 Downing Street.
Over the next six weeks, Rishi Sunak and Liz Truss face a series of hustings and debates before the next Prime Minister is announced on 5th September. According to the Telegraph, the candidates will use these events “to convince members that they have the answers to the critical issues of the day, including the cost-of-living crisis, the war in Ukraine and rampant inflation”.
Important issues, to be sure. But so too are the respective candidates’ views on the future direction of travel for the Online Safety Bill, a piece of legislation now at committee stage and that FSU General Secretary Toby Young recently described as a “censor’s charter”. (Critic).
And what of the candidates’ respective views on the Higher Education (Freedom of Speech) Bill, the Bill of Rights, and the many other issues we address in our five-point free speech manifesto: legal protections for workers’ speech rights, non-crime hate incidents, how to guard against political indoctrination in schools, and amending the Equality Act 2010 to ensure it cannot be used by universities to no-platform those who challenge fashionable woke orthodoxies? On those points and more, we know very little.
That’s why we’re going to use the next six weeks to extract as many substantive commitments to protect free speech from both the remaining leadership candidates as possible. If you’re a Conservative Party member and you haven’t already done so, please use our new campaigning tool to send them an email. If you’re a Conservative Party member and have already used the tool, remember that the template can be tweaked to accommodate whatever free speech issues you’d now like to raise with Rishi Sunak and Liz Truss.
Conservative Party leadership contest – this week’s free speech news
“Certainly, under Liz Truss, the Online Safety Bill will continue.” So said Culture Secretary Nadine Dorries during an appearance on the BBC Radio 4’s Today programme, seemingly determined to put as many listeners as possible off their breakfasts. Not that it necessarily follows from Ms Dorries’s statement that the Bill will continue ‘as is’ – indeed, Ms Truss has already spoken of her desire to “tweak” the Online Safety Bill (Times), and during last week’s Spectator magazine hustings, she made clear that she wanted to ensure the Bill “protected freedom of speech and freedom of the press”. Even so, David Davis MP – a staunch critic of the Bill – felt strongly enough to tweet that Ms Dorries’s comments were “worrying”.
Rishi Sunak, meanwhile, promised “as a matter of urgency” to honour a Tory manifesto pledge from 2017 to repeal Section 40 of the Crime and Courts Act 2013 – a legacy of the Leveson inquiry into press standards, which, although on the statute books has yet to be activated. (Mail, Telegraph). Mr Sunak made the commitment in a letter to Owen Meredith of the News Media Association. He said the Act, which would force newspapers to pay legal costs in defamation and privacy cases for both sides no matter the outcome – unless they sign-up to a Press regulator approved by the state – will be taken off the statute books before the next election. “It is vital,” Mr Sunak wrote, “that we remove this measure which seeks to coerce the press and stifle free speech ahead of the next general election.”
Elsewhere, Rishi Sunak accused Liz Truss of helping to enable Beijing’s infiltration of British universities. “For too long,” Mr Sunak declared, we have “turned a blind eye to China’s nefarious activity and ambitions.” (inews). Mr Sunak then pledged to close all 30 Confucius Institutes in the UK, including five in Scotland – a course of action that would require the new Prime Minister to overrule the SNP, as unlike the other UK administrations, the Scottish government jointly funds the cultural programmes. (Times). The China Research Group of Conservative backbenchers say the institutes are merely propaganda arms of the Chinese Communist Party and a malign influence on the UK education system. (Times). Inevitably, Sunak’s team went on to point out that nine of the 31 Confucius centres in Britain were established when Ms Truss was an education minister between 2012 and 2014. (Telegraph).
The FSU receives a response from the Secretary of State for Education
Back in June, FSU General Secretary Toby Young wrote 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 that we campaigned for – removing the caveat “within their field of expertise” from Clause 1, so the new free speech protections apply to academics regardless of whether their speaking or writing about something within their field of expertise or not, and making it harder for “security costs” to be cited by universities or student unions to justify no-platforming a controversial speaker. We’ve now received a reply from the new Education Secretary, the Rt Hon. James Cleverly MP, thanking us for the support we have given the Bill. You can read our original letter and the Secretary of State’s reply here. Over the next few weeks, we’re looking forward to engaging with the FSU’s allies in both chambers of Parliament to ensure that the final version of the Bill makes its new protections for freedom of speech and academic freedom even more robust.
Maureen Martin and the case for amendments to the Employment Rights Act 1996
The FSU is campaigning for an amendment to the Employment Rights Act 1996 to make it impossible for companies to discipline staff for saying non-woke things outside of the workplace. The case of Maureen Martin demonstrates exactly why that change is needed.
As Toby explained on GB News (and also for the Mail), Maureen was fired from her job at housing association L&Q because she said things about marriage that some people judged politically incorrect. Ms Martin was campaigning to become mayor of Lewisham in South-East London when she published a ‘six-point plan’ of action that was posted to the borough’s 205,000 registered voters. One of those six points expressed the orthodox Christian belief that “natural marriage between a man and a woman is the fundamental building block for a successful society, and the safest environment for raising children”. Sensing an opportunity, local LGBT activists eagerly moved in for the cancel, reproducing an image of her leaflet on Twitter, accusing her of ‘hate speech’ and then demanding she be dismissed. Despite an unblemished 13-year-record of employment, her employer duly obliged, sacking Maureen for breaching the company’s social-media policy and bringing L&Q into disrepute. Needless to say, L&Q is a member of Stonewall’s Diversity Champions programme.
As FSU Deputy Director Ben Jones pointed out – also on GB News – the details may differ, but the overall scenario remains the same: “This week alone, we have more than 80 live cases where we are helping people in situations like Maureen’s, where they’ve lost their job for expressing often very mild views.” Last year, for instance, we helped Jeremy Sleath, who’d been fired by West Midlands Trains for celebrating the reopening of the pubs on ‘Freedom Day’ by saying on Facebook that he didn’t want to live in a ‘Muslim alcohol-free caliphate’ for the rest of his life. It didn’t matter that he’d said it outside the workplace on a personal account. Like Maureen, he was dismissed for breaching social-media policy and bringing the company into disrepute. With our help, Jeremy fought back in court and got a judgement of ‘unfair dismissal’.
The organisation Christian Concern is currently helping Maureen take legal action against L&Q, and Toby suspects that they’ll be equally successful, not least because under the Equality Act 2010 expressions of religion or belief are protected, meaning you cannot be fired for expressing an orthodox religious view, however distasteful some might find it. That said, however, taking your employer to an Employment Tribunal is a lengthy and often ruinously costly process. (Allison Bailey had to raise more than £500,000 to fund her recent legal case, for example.) That’s why we believe the Employment Rights Act needs amending to make it impossible for employers to sack employees who say something lawful outside the workplace. Something else we’d like to see is a statute of limitations on what people can be investigated for. In recent years, we’ve seen the rise of what the author Freddie deBoer has called “offence archaeology”, with people going back many years to try and find things people have said that are supposedly offensive in order to get them disciplined, sacked or cancelled. (Telegraph, Spiked, Spectator). Like libel and slander, we’d like to see a 12-month statute of limitations on what you can be investigated for.
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