A red line for the EU Referendum

I have been thinking about how to vote in the EU referendum

It is very unusual for me to see a massively important vote approaching and not to be involved in a campaign on one side or the other or to know how I am going to vote.

I did sometimes get asked about this as a European candidate in 2014: at the time I could and did say that the first thing was to get the referendum, for which people had to elect a Conservative government, and then we would see what came out of negotiations.

But now the first part of that has happened, we need to start thinking about what we want to see.

I hope that both "In" and "Out" camps will fight a positive campaign around a clear view of the sort of Britain they want and learn lessons from the mistakes made by both sides in the Scottish Referendum campaign. Much more on that subject in a separate post at the weekend.

But we also need to identify the objectives which we want to be delivered for a Britain in the EU or one outside it.

One "red line" for me has become clear this week: if the EU's egregious Justice Commissioner makes any progress in her apparent wish to make the EU more of a force against free speech, I will be voting to leave.

Vera Jourova, the European Union commissioner for Justice, made a speech on 2nd October at the conclusion of a European conference on Fundamental rights which you can read here.

She thinks it is "disgraceful" that it is a criminal offence in only thirteen of the 28 EU members states to deny that the holocaust happened.

She also said that

"If freedom of expression is one of the building blocks of a democratic society, hate speech on the other hand, is a blatant violation of that freedom.

It must be severely punished."

There is a solid critique of her position in The Economist here

Let me declare an interest: I am a member of one of the groups which Hitler and the Nazis hated and targeted for mass murder in the 1940s.

Of course the Holocaust happened. Every person who denies that and of whom I have any knowledge is at best catastrophically ignorant and more likely either a liar and fraud or a fantasist and fool.

However, although I agree that it is a shame that expressing that opinion is a crime in thirteen member states, that's because for me it is thirteen too many, not fifteen too few.

It is instructive to compare the impact on the reputation of the historian David Irving of his collisions with the law in Britain, where Holocaust Denial is not illegal but lying about someone can have serious legal consequences, and in Austria where it is against the law to claim that the Holocaust did not happen.

When David Irving was sentenced to three years in jail by the Austrian courts in 2006 for denying the Holocaust in a speech made in Austria in 1989, he was seen by some people's as a martyr and a victim.

By contrast, when he sued the American historian Deborah Lipstadt and Penguin Books for libel in a British court after she had written that he was a holocaust denier, his arguments and what was left of his reputation were forensically destroyed in court, and the judge ruled

"Having considered the various arguments advanced by Irving to assail the effect of the convergent evidence relied upon by the Defendants, it is my conclusion that no objective, fair-minded historian would have serious cause to doubt that there were gas chambers at Auschwitz and that they were operated on a substantial scale to kill hundreds of thousands of Jews,"

and

"it follows that it is my conclusion that Irving's denials of these propositions were contrary to the evidence."

Furthermore,

"the allegation that Irving is a racist is also established."

Deborah Lipstadt's comment when Irving was prosecuted in Austria was

"I am not happy when censorship wins, and I don't believe in winning battles via censorship… The way of fighting Holocaust deniers is with history and with truth."

If by "hate speech" you mean incitement to violence or words which are likely to cause a breach of the peace, then of course incitement to criminal activity or conduct likely to cause a breach of the peace is and should be illegal.

The problem is that expressions like "hate speech" can all too easily, unless they are tightly defined, be used to suppress opinions that someone doesn't like. We've seen that time and again on British university campuses. We saw it with the clause of Section 5 of the Public Order act which made insulting people a criminal offence until the relevant words were taken off the statute book last year.

We've seen that a strong expression of disagreement with the truth of a particular religious faith may well be regarded by some of the people who believe in that faith as blasphemy and "hate speech" and if given the least encouragement they will try to use the law to stop it.

If I wanted an easy life for myself, I would be supporting Vera Jourova: after all, if you worded the law the way she appears to want, if would be much more likely that the people who were shouting "Tory scum" or worse things at me and everyone else who went into or out of the Conservative conference prosecuted.

Now I do think that those who spat on or threw eggs at people attending the conservative conference should have been prosecuted, and the people who shouted "We're going to rape you Tory whore" at a young female delegate were close to if not over the line between peaceful protest on the one hand and violence and intimidation on the other.

But people who merely shout insults - and in the process probably reduce the Labour vote further - should not be prosecuted.

It's all too easy for the category of targets for her "severe punishment" to grow to anyone the prevailing mood doesn't agree with.

As Nick Cohen recently wrote, and I make no apology for repeating this quote,

 "Censors never confine themselves to deserving targets. They aren’t snipers but machine gunners, who will hit anything that moves. Give them permission to shoot, and one day they will hit you."