Freedom of expression is guaranteed under the Human Rights Act 1998, which incorporates the European Convention on Human Rights into UK law.
The claim that adoption of the International Definition of Antisemitism conflicts with the duty on universities to protect free speech is a familiar and flawed argument, notwithstanding its persistence.
Several of the explicit examples of antisemitism under the Definition pertain to calls for or justifications of the killing or harming of Jews; demonisation of Jews; denial of the Holocaust or accusations that Jews exaggerate it; and accusations of Jewish disloyalty or dual loyalty. Opposition to the Definition rarely turns on the freedom to express such sentiments; accordingly, it is worth bearing in mind that many of the examples under the Definition thankfully do not arouse controversy.
Some of the other examples relate to antisemitism that is disguised as discourse about Israel, the Jewish state. Again, however, it is difficult to make the claim that freedom of expression is inhibited by alerting universities to the fact that denying Jews their right to self-determination or applying double standards to the Jewish state not demanded of any other democratic nation is antisemitic; as is using blood libels to characterise Israelis; holding Jews responsible for the actions of Israel; and comparing those actions to those of the Nazis. Within these bounds it is perfectly possible to have as wide a discussion about Israel as one would about any other country.
Moreover, the Definition explicitly states that “criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic” (and it also emphaises the importance of context), a critical caveat that is frequently ignored by those who oppose adoption of the Definition. It is worth reflecting also on the fact that the egregious instances of antisemitism that the Equality and Human Rights Commission (EHRC) identified in its report on antisemitism in the Labour Party were mostly forms of antisemitism related to Israel.
There is no legitimate debate about Israel that involves denying its right to exist, characterising the very existence of a State of Israel as racist, or comparing its conduct to that of the Nazis. Those who rely on such assertions are not concerned with open discussion. As Lord Wolfson of Tredegar QC observed in the House of Lords in a debate on antisemitism on university campuses in January 2021: “Racism is the antithesis of debate. An antisemite does not want to hear what you say.” The freedom of expression argument against the Definition is a canard promoted only by those who want the freedom to be racist.
Offensive speech vs antisemitic speech in law
There is a also an important legal distinction between speech that is ‘merely’ insulting or offensive, and speech that is antisemitic. The former is protected under the right to freedom of expression in Article 10 of the European Convention on Human Rights, which is part of UK law via the Human Rights Act 1998. The latter, antisemitic speech, is either not protected under the guarantee of freedom of expression at all because it conflicts with other fundamental values, amounts to a form of hate speech, and so falls outside the scope of Article 10 or, if the speech is not entirely beyond the pale and therefore benefits from some protection under the Article 10 guarantee, it may nevertheless still be the subject to perfectly legal regulation. It is regulated, for example, under the Equality Act 2010.
What is required is that the speech in question is subject to a balancing exercise involving proportionality. Both the Definition, which is highly context-sensitive, and the balancing exercise that is envisaged where speech enjoys some protection under the Equality Act, require attention to the particular circumstances and the exercise of sound judgment. There is no inconsistency between the two, something that the EHRC correctly acknowledged in its Report on Antisemitism in the Labour Party.
As a matter of interest, the two primary instances of antisemitic speech that the EHRC found in its Report to have amounted to harassment against Jewish members of the Party under section 26 of the Equality Act 2010 were considered by the EHRC to be so egregious that the EHRC found that the speech in question enjoyed no protection under Article 10 whatsover.
The Equality Act itself contains no definition of antisemitism. Nevertheless, identifying what is antisemitic, as opposed to merely insulting, conduct, is essential in order to establish the close connection required under section 26 of the Equality Act between “unwanted conduct” and “harassment” related to the protected categories of reliegion and race (Jewish ethnicity). It goes without saying that universities are subject to the Equality Act and it is not generally thought that this conflicts with their duty to promote freedom of speech. The Definition is consistent with the approach under the Equality Act. In important ways, it provides the tool to identify antisemitism where the Equality Act lacks any definition at all. It is very useful in assisting in understanding what antisemitism is and when the speech in question moves beyond “insult” into something more troubling.
In short, it is simply wrong to say that the Definition conflicts with the duty of universities to protect free speech, and it is obviously wrong to say, as some do, that it conflicts “directly”.
Furthermore, although some claim that the Definition is not an appropriate tool to address antisemitism on campus, they fail to specify what they think ought to be done in lieu of adoption. As research has shown over many years, antisemitism is resurgent in our country, and Jewish students are often on the front line of this hatred, which is espoused not only by a minority of their fellow students but even by some of their teachers and faculty. It is not sufficient to plead for ‘respectful debate’ – we no longer have the luxury of prevarication at a time when anti-Jewish racism is so prominent as to have recently reached the highest levels of our civic life. We must learn from recent events and introduce measures to prevent their repetition. The adoption of the Definition is unquestionably one of those measures, and this campaign has the backing of the entire mainstream Jewish community.
Opinion of expert counsel
In July 2017, Campaign Against Antisemitism published the opinion of expert counsel on the adoption of the Definition. David Wolfson QC (Lord Wolfson of Tredegar) and Jeremy Brier, who acted for Campaign Against Antisemitism pro bono, drew up the nine-page opinion. The opinion includes a detailed assessment of the Definition itself, considers the application of the definition in difficult cases, and contains useful advice for public bodies, including universities, which are considering using the Definition.
The opinion states that: “The Definition is a clear, meaningful and workable definition. The Definition is an important development in terms of identifying and preventing antisemitism, in particular in its modern and non-traditional forms, which often reach beyond simple expressions of hatred for Jews and instead refer to Jewish people and Jewish associations in highly derogatory, veiled terms (e.g. ‘Zio’ or ‘Rothschilds’). Public bodies in the United Kingdom are not ‘at risk’ in using this Definition. Indeed, this Definition should be used by public bodies on the basis that it will ensure that the identification of antisemitism is clear, fair and accurate. Criticism of Israel, even in robust terms, cannot be regarded as antisemitic per se and such criticism is not captured by the Definition. However, criticisms of Israel in terms which are channels of expression for hatred towards Jewish people (such as by particular invocations of the Holocaust or Nazism) will in all likelihood be antisemitic.”
Campaign Against Antisemitism is happy to speak to any university administration, students’ union, Jewish Society or other interested campus body regarding the Definition, whether in the context of antisemitism training or a private consultation.