Dear Mr Ferguson,

My name is Julius Grower, and I am an Associate Professor of Law at the University of Oxford. I am writing to you having seen your contribution to the debate around the urgent question, asked today in the House of Commons, about freedom of speech in universities. 

Towards the end of your remarks, you said: “Would my honourable friend [the Minister] agree with me that the party opposite’s position is in fact a charter for Hizb ut-Tahrir, Holocaust deniers, and vaccine deniers to wander our universities freely?”

I am afraid that your comments show a profound misunderstanding of the nature of the law upon which you commented, which I feel compelled to correct. You may very well have reasons for supporting the Government’s (I think, woeful) decision — condemned so far by over 650 academics, including 7 Nobel Prize laureates and a Fields Medallist — to pause the implementation of the Higher Education (Freedom of Speech) Act 2023. But the reasons you expressed today are fundamentally flawed ones. It is incumbent on you to do better.

1. It is not a Tory charter

• By the end of its time in Parliament, and, in particular, by the time it was being debated in great detail in the House of Lords, the then Higher Education (Freedom of Speech) Bill had received, in principle, cross-party support. If you are in any doubt as to that fact, you should speak with Lord Collins of Highbury, who was the relevant Labour shadow minister in the Lords at that time.

 2. It does not protect Holocaust denial 

• The Higher Education (Freedom of Speech) Act 2023 does not purport to change the scope of the law on what is free to be said in English and Welsh universities. This point was expressly raised a number of times in the House of Lords, and was expressly responded to by the (then) Government. No one has seriously suggested otherwise since. Indeed, if you need confirmation of that, please read Akua Reindorf KC’s article in the Times Higher Education supplement. No lawyer has, as far as I am aware, suggested that she is wrong in saying what she has.

• The definition of freedom of speech in the Act is expressly said to be that covered by Article 10(1) of the European Convention on Human Rights (as incorporated into English law by the Human Rights Act 1998). Article 10(1) is plainly and uncontrovertibly qualified by Article 10(2) and by Article 17. Furthermore, Article 17 has been interpreted by the courts, including the European Court of Human Rights, as specifically excluding Holocaust denial from the right to any legal protection. Again, please see Reindorf KC’s article if you need confirmation of this. Ms Reindorf is an Equality and Human Rights Commissioner and an expert in equality and human rights law. She is correct in what she says.

• Incidentally, although I do not think I should have to say this in order for my points to be taken seriously, it seems appropriate to make clear that I myself am Jewish, and am acutely aware of the problems of anti-semitism on our campuses. However, I believe that the solution to that issue is to give effect to legislation which will more effectively allow Jews and Zionists to hold their own events on campuses, and stop them from being closed down by murky threats made by mobs. Unfortunately, as we have just seen with Suella Braveman’s cancelled talk in Cambridge, this is precisely what is happening under the current (unreformed) regulatory regime.

3. It does not protect Hizb ut-Tahrir’s speech. 

• It is not wholly clear from your remarks what you meant by the law being a “charter” for Hizb ut-Tahrir. Clearly it is not legislation which alters the fact that Hizb ut-Tahrir is a proscribed organisation. I assume therefore that you meant that the Act would cover – and allow for the promotion of – Hizb ut-Tahrir’s ideology. This is, once again, entirely false. Expressing support for Hizb ut-Tahrir, and spreading or supporting their hateful ideology, is a criminal offence. People can go to prison for doing so. As said above, nothing about the 2023 Act changed (or even purported to change) the scope of what can and cannot be said as a matter of English law, whether within or without universities. Section 1(2) of the Act refers to “freedom of speech within the law”. The key words there are: “within the law”. Praising/expressing support for/promoting the propaganda of a terrorist organisation is unlawful speech and thus not covered by the Act. Even if you are not a lawyer, this should, I’m afraid, have been obvious to you upon even a cursory reading of the legislation.

 4. Vaccine deniers.

• Once again, it is not wholly clear what you meant. I do not know of any academics who deny the fact that vaccines exist. I assume, then, that you were attempting to refer to people who question the efficacy of vaccines and in particular covid vaccines. This is a curious point for you to raise. To start with, I have not seen that objection to the Act raised at any point before now. Is vaccine denialism at universities even a real social problem? Secondly, questioning/denying the efficacy of covid vaccines is entirely lawful speech. Someone doing it would commit no criminal offence anywhere in the United Kingdom. It may be a stupid, uninformed position to adopt, but so are lots of other viewpoints which we are very happy to allow. Is it really your position that you object to the implementation of the 2023 Act because it protects people’s rights to say things in universities that they are currently allowed to both in universities and on the street? That would be an irrational and deeply illiberal, censorious position to adopt, and I suspect you would want to reflect further on it before seriously doing so.

(A side thought. If you really do think “vaccine denialism” at universities should not be protected speech, how would you otherwise distinguish between medical experts who are genuinely questioning the efficacy of some treatments (e.g. as people did at the start of the Thalidomide scandal) and those engaging in what you think is inappropriate questioning? If you won’t allow both forms of speech to be expressed and then subject to the rigorous scrutiny of other academics, can you please explain where you would prospectively and clearly draw a line between them?)

Mr Ferguson, you are a member of the House of Commons and a representative of both your constituents and the British people more generally. It is not, I think, too much for us to expect that you get the basic facts right before intervening in debates. In this instance, you have utterly failed to do so. This has not only left your contribution to this morning’s proceedings entirely pointless (and made you look faintly ridiculous), but has therefore also failed to add anything of use to what both sides say is a difficult issue that requires careful thought and compromise. As a nation, we need you to do much better than this.

If you wish to speak about these matters, I will make myself available to you at any time (either online or in person, in London or Oxford) to discuss them.

Yours sincerely,

Julius