Ever since the controversial decision to pause commencement of the most important provisions of the Higher Education (Freedom of Speech) Act — HEFOSA — Education Secretary Bridget Phillipson has time and again told us that her decision was based on a concern for minority students, especially Jewish students. She reiterated this claim at the Labour Conference in an interview with the Spectator’s Katy Balls, saying that Jewish students were “concerned about the risk of Holocaust denial and hate speech on campus.”

In a recent article for the Daily Telegraph entitled “We will give teachers the resources to root out anti-Semitism for good”, Phillipson explained how a new “government effort [will] upskill teachers and university staff to tackle anti-Semitism.” While it remains unclear what these new “resources” consist of, one might worry that they could include shielding Jewish students from viewpoints they disagree with.

Of course, British law protects everyone from certain forms of expression, such as hate speech, and Jewish students and academics have just as much right to these protections as anyone else. However, HEFOSA does nothing to licence this sort of speech, a point that many people, including in Whitehall, seem to have missed. Indeed, one of Phillipson’s aides described the Act as a “hate speech charter”, adding that “[w]e make no apology for pausing [HEFOSA], which would have allowed antisemites and holocaust deniers free rein on campus.”          

Two major contributors to this perception are the Board of Deputies of British Jews and the Union of Jewish Students (UJS), both of whom have voiced their concerns about HEFOSA to the Education Secretary. But how representative of British Jews and Jewish students are they? As historian David Abulafia pointed out in a recent Spectator article, “the Jewish community does not speak with one voice, and it is important that [we] are fully aware of the diversity of opinion”. Over the past few weeks, the Committee for Academic Freedom has spoken to several Jewish students and student groups from across the UK. Our investigation casts some light on what one student called the “vast breadth of opinions and viewpoints” in the community.

Of course, many Jewish students are staunchly loyal to the Union of Jewish Students line. Zac Bates Fisher, president of the University of Sheffield Jewish Society, told us that he “wholly agrees with the UJS in this matter”. But there are many dissenting voices too. Samuel Rubinstein, a doctoral student at Oxford and freelance journalist, told us that “it will do Jewish students no favours — least of all in the current climate – to allow student mobs to ‘cancel’ speakers whose views they find offensive, and to dictate what speech is permitted in universities”. Another student from Warwick University Jewish Society, who asked not to be named, called the argument that HEFOSA would increase hate speech on campus “feeble”. He added, however, that he could only speak in a personal capacity, as views in Warwick JSoc were divided.  

Nicky Helfgott, the president of the University of Edinburgh Jewish Society, said that he was indifferent to the Act, as “existing laws already provide significant freedom of speech and academic freedom.” He went on to add that “antisemites will be antisemites regardless of whether or not what they say is protected by law. They are not watching and studying the laws of free speech, before carefully towing the line to stay just under the ‘antisemitism threshold’.”

Another perspective was offered by Manchester University Jewish Society. Its communications officer, Hershi Schneck, said that although there had been “a worrying trend of hostility and animosity aimed at Jewish students” since last October, the Society’s members “agree wholeheartedly that Freedom of Speech and the right to express one’s views and opinions without fearing reprisal is indeed of vital importance and that this right must be protected.”

He added that “[t]he proposed legislation [HEFOSA] could be helpful in enabling Jewish students to express their views more effectively and openly, especially when it comes to challenging topics such as the Israel/Hamas conflict.” However, he also made it clear that this position was not necessarily representative, as “it is clear that there are a range of views expressed by students”.

From their responses, it seems that most Jewish students who are concerned about HEFOSA worry that it will make currently illegal speech legal. One student, who asked to remain anonymous, wrote: “the new legislation … could cause a rise of antisemitism”, especially given the recent “graffiti in bathrooms saying “Up Hamas” and “Kikes Out”, chants of “Globalise the Intifada”, and online or in-person bullying”. 

This is an understandable concern. But it is a mistake to think that HEFOSA could have effects mentioned. As an expert on hate-speech law put it to us, “the Act doesn’t change what speech is lawful/unlawful … It imposes various duties to promote (already lawful) speech and creates new offices and mechanisms to this end”. In other words, the legal status of hate speech and Holocaust denial does not change under HEFOSA. These are, as Oxford law professor Julius Grower wrote in a recent Critic article, already prohibited or denied protection by other laws, such the European Convention on Human Rights and the Human Rights Act 1998. If anyone thinks too much hateful speech is allowed on UK campuses, they have a problem with current legislation, not with HEFOSA.

… while it is true that some Jewish academics and students are concerned … many others welcome the increased protection it would afford unpopular but legal views

It is ironic that the interests of Jewish students should have been invoked in defence of the suspension of HEFOSA. The fact is, as respected lawyer Akua Reindorf has pointed out, that HEFOSA “would have actually protected Jewish staff and students on campus, as well as pro-Israeli speakers”. “At a time when Jewish students have been experiencing increasing hostility on campus”, agrees Prof. Abulafia, “the Act offers the guarantee they need that universities will recover their role as the home of civilised debate in which they and their invited guests can express their own opinions without fear of intimidation.”

But it’s not just pro-Israel Jewish speakers who have need of protection. Avi Shlaim, a British-Israeli historian and an emeritus professor at the University of Oxford, is a prominent critic of Israel’s foreign policy. He is also a strong defender of HEFOSA, perhaps as a result of his own “cancellation” last October. He provided this written statement to CAF:

Bridget Phillipson’s announcement that she was pausing the implementation of the 2023 Higher Education (Freedom of Speech Act) is very concerning. One of the reasons she gave for halting the Act was that “Jewish groups” were worried that “fear of sanction will push providers to overlook the safety and well-being of minorities”. Jewish students, like any other minority, have a right to physical safety on campus. They do not have the right to be protected from views that make them feel uncomfortable but do not constitute hate speech. Vigorous debate is what universities are all about. The Act also offers more protection to academics who teach material that could offend some students, for example, critiques of Zionism. Repealing the Act would be a step backward and it would have a chilling effect on the core value of our profession: freedom of speech.

In short, while it is true that some Jewish academics and students are concerned about HEFOSA’s impact on hate speech, many others welcome the increased protection it would afford unpopular but legal views. Moreover, it seems that much of the opposition to the Act is based on the misconception that it would legalise certain forms of hate speech; if this is corrected, the opposition might disappear. In any event, it is disingenuous of the Education Secretary to cite the opinion of a few Jewish organisations as representative of the UK Jewish community as a whole.