Forcing an antisemitism definition on universities is ministerial overreach

Gavin Williamson’s directive will embolden other groups to demand the enforcement of their interests by ministerial fiat, says Geoffrey Alderman

December 7, 2020
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The heads of English further and higher education institutions recently received one of the most extraordinary and disturbing letters ever written to them by a secretary of state for education.

On 9 October, Gavin Williamson emailed all such institutions – both public and private – under the purview of the Department for Education to “ask” them to “adopt the International Holocaust Remembrance Alliance’s (IHRA) definition of antisemitism”.

And so saying, Williamson launched into a glowing and quite uncritical two-page summary of this “definition”, pointing out that it had been “adopted” by the British government as long ago as 2016.

Confessing himself “frankly disappointed” that most HEIs had not yet signed up to the definition, Williamson then revealed that he had asked his officials “to consider options that include directing the [Office for Students] to impose a new regulatory condition of registration and suspending funding streams for universities at which antisemitic incidents occur and which have not signed up to the definition”.

“You should have no doubt,” he concluded: “this government has zero tolerance towards antisemitism. If I have not seen the overwhelming majority of institutions adopting the definition by Christmas then I will act.”

I am not concerned here with the minutiae of the IHRA definition of antisemitism, although I should say – as I and a number of other well-informed Jewish commentators have said in print elsewhere – that it contains numerous ambiguities and was, in any case, never meant as a legally enforceable tool.

What concerns me here is the threatening language employed by the secretary of state, used, no doubt, quite deliberately to bully and browbeat providers.

And to what end? Certainly not to enforce, say, fiduciary responsibility or health and safety legislation. If either of these objectives were in play, I could well forgive Williamson’s harsh language; indeed I would probably applaud it. But we need to be clear about what the end is here.

Williamson is telling providers that unless they adopt a particular mode of thought (in relation to anti-Jewish prejudice), they could find themselves at the receiving end of financial penalties. They might even endanger their registration with the OfS, which is essential if their eligible students are to draw down tuition funding from the Student Loans Company.

Whether the OfS has the legal authority to withdraw registration on these grounds is, of course, itself open to question. Indeed, the 2017 Higher Education & Research Act (HERA) that established the OfS specifically obliges it (in Section 2) to have regard “to the need to protect the institutional autonomy of English higher education providers”. The OfS was certainly not set up to breach that autonomy at the political and/or ideological whim of any secretary of state.

It remains to be seen whether Williamson will carry out his threat. Should he do so, the implications of such a shameless act of ministerial overreach are breathtaking. Other religious and ethnic groups are bound to exploit the precedent and demand that their interests are similarly enforced by ministerial fiat and OfS agency. A door will have been opened that it will be exceedingly difficult and probably impossible to close.

I’ve been told that Williamson has been advised to wait until a suitable piece of draft primary legislation reaches Parliament that will allow him to amend the HERA to give the OfS the authority it will need to enforce the IHRA definition. Whether the OfS will itself be happy to be used in this way is another question that will have to be asked. My own soundings suggest – unsurprisingly – that it is not.

Anti-Jewish prejudice on campus is without doubt a serious problem. However, legislation is already on the statute book to deal with it: namely the Equality Act of 2010. Indeed, this was the very document that was recently used by the Equality and Human Rights Commission to excoriate the handling of antisemitic complaints by Williamson’s political opponents in the Labour Party under its previous leader, Jeremy Corbyn.

Does Williamson know this, I wonder?

Geoffrey Alderman is professor emeritus at the University of Buckingham.

POSTSCRIPT:

Print headline: Definition of overreach

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Reader's comments (4)

Wrong. Universities have failed to put their own house in order, government is right to step in. The Equality Act does not cover Israel-related antisemitism and in any case, why should students have to resort to the law? To advocate this is entirely impractical. Universities have been giving antisemitism a free pass under the cloak of 'Free Speech' for far too long. Enough Is Enough.
'Israel-related antisemitism' - what is that? That looks like a negation of the IHRA definition as it conflates Jewishness with the state of Israel or even the actions of its government. Millions of Jews are happy to be a diaspora and are unhappy about the oppression of Palestinians. Criticism of the actions of the Israeli govt (which was elected) are not antisemitic: they are criticisms of the actions of the Israeli government. Socialist Jews in this country support BDS.
Surely standard anti-discrimination policies cover those of Jewish ancestry and faith just as much as they include everybody else. Why something separate? Especially something that isn't quite as well-considered as it could be, conflating being Jewish (which should never be discriminated against, of course) with the state of Israel (which, like any nation-state, is fair game for criticism by anyone who does not agree with their policies). Any institution committed to acting fairly towards all irrespective of their ethnicity, faith, gender, (dis)ability, sexual orientation or other factors is already doing what they ought to be doing and has no need whatsoever to pander to special pleading from any group.
When what became the Education Reform Act of 1988 was being debated in Parliament one enthusiastic Conservative M.P. said "Let's abolish Academic Freedom – whatever that is". Fortunate academic staff fought hard and eventually a House of Lords amendment to the bill was accepted by the Commons and the Act now insists that "academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges". This gives some protection to universities and the answer to any group who consider that the law is broken in regard to the IHRA definition of antisemitism is "Prosecute" and clarify the law. Mutatis mutandis this also applies to the "Prevent" policies. We should remember the warning of Karl Jaspers who lived through the rise of the Nazis so knew a thing or two about authoritarian governments "No state intolerant of any restriction on its power for fear of the consequences of a pure search for truth, will ever allow a genuine university to exist". David Packham, University of Bath

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