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Unlike the United States, the United Kingdom’s constitution cannot be found in one location, though to say it is an ‘unwritten’ constitution would be incorrect. Instead the United Kingdom’s constitution can be found in many different locations, including Acts of Parliament, court judgments and convention. This allows for a much more flexible constitution, that has the ability to adapt with greater ease than a more rigid constitution, such as the United States’.
This changing nature has been witnessed over the past seventy years, as the very face of the United Kingdom has changed, and the role of human rights has become much more prominent. Following the end of the Second World War, and the end of the British Empire, the United Kingdom witnessed unprecedented levels of immigrations from all four corners of the globe, leading to a diverse society of many races and religions. Such rapid change however, was not easy and required a number of measures in order to prevent hate speech towards different minorities.
The first such piece of legislation was the Race Relations Act 1965 which outlawed discrimination on the “grounds of colour, race, or ethnic or national origins,” in public places. This legislation was seen as relatively weak, and was repealed by the Race Relations Act 1976 which covered discrimination in the fields of employment, provision of goods and services, and education. The Act also established a Commission for Racial Equality to ensure adherence to the legislation. A wide array of anti-discrimination acts were eventually codified under a single act, the Equality Act 2010. Its aim is to guarantee equal treatment regardless of ‘protected characteristics’ including age, gender, race, religion or sexual orientation.
The Racial and Religious Hatred Act 2006 is a further act of importance in this matter, making it a criminal offence to incite hatred against a person on the grounds of their religion. This Act is of particular interest because although it deals with the publication of written material which may be deemed to be threatening, it also ensures the protection of freedom of speech stating:
Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or Racial and Religious Hatred against persons on religious grounds urging adherents of a different religion or belief system to cease practising their religion or belief system.
Alongside this Act, also protecting freedom of expression is the Human Rights Act 1998, incorporating the European Convention on Human Rights into UK law. As a result, Article 10 of the ECHR, providing the right to freedom of expression (along with its restrictions) is enforceable in UK courts.
The United Kingdom has no law that specifically outlaws Holocaust denial, with the Institute for Jewish Policy Research (JPR) stating, “Current laws on incitement to racial hatred in the United Kingdom do not have the effect of prohibiting the activities of Holocaust deniers.” This is not to say that there have been no attempts at introducing legislation. In 1997 a Holocaust Denial Bill was tabled in the House of Commons which would have amended exciting legislation to criminalise Holocaust denial. The Bill failed however, due to insufficient parliamentary time. Interestingly, the Institute’s panel reached a unanimous view that criminalisation of Holocaust denial would be inadvisable. Among their reasons were the potentially illegitimate infringement on the right to freedom of expression, unconvincing evidence from other jurisdictions with such legislation, conceptual problems, and a fear that prosecution of such cases could work to the advantage of deniers. Instead, they recommended amending existing laws on racial hatred, “in order to improve their effectiveness in dealing with expressions of racism and anti-Semitism.”
David Irving v Penguin Books and Deborah Lipstadt
The United Kingdom has witnessed one of the most prominent trials regarding Holocaust denial, in the form of Irving v Penguin Books and Lipstadt. David Irving, a British author, filed a claim after American author Deborah Lipstadt, and her publishers Penguin Books, asserting that Lipstadt had libelled him in her book Denying the Holocaust.
David Irving is a widely published British author who has written extensively on Nazi Germany, with works including The Destruction of Dresden, Hitler’s War, and Goebbels: Mastermind of the Third Reich. Prior to the 1980s, Irving had been a widely respected historian capable of unearthing new sources and evidence previously missed by other historians. However, he began to espouse more sympathetic views towards Hitler and the Nazi regime, including a belief that Hitler did not know of the extermination of the Jews.
A turning point for Irving came in 1988, when he was asked by Ernst Zündel to testify during his trial in Canada for distributing Holocaust denial literature. During the trial, a report was presented by Fred Leuchter which stated that Jews were not systematically gassed at Auschwitz by the Nazi regime. One piece of evidence Leuchter presented, which Irving subsequently used during the later trial, was that quantities of cyanide found in the walls of the supposed gas chamber were lower than those found in chambers used for fumigating clothes to kill lice. Leuchter argued that this was evidence that not enough cyanide was found to lead to the death of humans. This was later proven by scientists to be incorrect, as lice have a higher resistance against cyanide than humans, therefore requiring more exposure. Irving’s support of this report marginalised him amongst historians.
Deborah Lipstadt was born into an American-Jewish family in New York, with her German-born father having left his home prior to the Nazis coming to power. Lipstadt did have family members who were murdered at the concentration camps by the Nazis. After spending time studying in the United States and Israel, she began teaching at the University of Washington in Seattle, before becoming a Professor of Modern Jewish History and Holocaust Studies at Emory University, Georgia. Lipstadt has been a consultant to the United States Holocaust Memorial Museum and was appointed by Bill Clinton to serve on the University States Holocaust Memorial Council, tasked with ‘helping citizens confront hatred, prevent genocide, promote human dignity and strengthen democracy.’
Lipstadt had previously published a book, and several papers on Holocaust denial, and in 1993 published ‘Denying the Holocaust: The Growing Assault on Truth and Memory.’ Within the book she attempts to explain how people came to deny the Holocaust or claim that it had been exaggerated by the Jews. She accuses several individuals of being Holocaust deniers, including Robert Faurisson, Zündel and Leuchter, and David Irving. She also accuses the previously discussed Institute for Historical Review of spreading lies about the Holocaust.
On Irving, Lipstadt stated;
Irving is one of the most dangerous spokespersons for Holocaust denial. Familiar with historical evidence, he bends it until it conforms with his ideological leanings and political agenda. A man who is convinced that Britain’s great decline was accelerated by its decision to go to war with Germany, he is most facile at taking accurate information and shaping it to confirm his conclusions.
Irving took issue with this, along with several other criticisms of his work, and in 1994 confronted Lipstadt at a lecture she was giving on Holocaust denial in Atlanta. Irving challenged Lipstadt to a debate, stating that he would give any one $1000 if they could find a written order from Hitler demanding the extermination of the Jewish people. After Lipstadt had refused to debate Irving, he claimed this as a victory, and evidence that her criticisms of him were unjustified.
In 1996 Irving filed a libel case against Lipstadt and her publishers, Penguin Books, stating that he had been libelled on the grounds of being falsely labelled as a Holocaust denier, claiming that he had falsified or manipulated historical evidence, and deliberately misinterpreting it, damaging his reputation as a historian. Irving specifically filed the claim in England as it gave him an advantage regarding the burden of proof. American libel law requires a ‘public figure’ who claims to have been libelled to prove the statements are defamatory. Furthermore, use of reliable sources is a valid defence, and undoubtedly one which would have worked in Lipstadt’s favour. Instead English libel law requires the defendant to prove that their statements were true. Gray J stated that, “what must be proved is the truth of the sting of the defamatory charges made.”
Lipstadt recognised that she would have to defend herself, for fear of giving Irving’s views legitimacy. Her legal team drew up a strategy consisting of three parts; firstly, they would show that no ‘reasonable and fair-minded’ historian would doubt the occurrence of the Holocaust, along with a co-ordinated Nazi plan to exterminate the Jews, hoping to show that Irving was not reasonable in his approach. Secondly, they would document Irving’s links with far-right fascist groups, and lastly, examine his work to prove falsification of historical records. It was also decided that no Holocaust survivors would be called as witnesses for the defence. Irving had a history of making jokes around Holocaust survivors, asking one individual how much money she had made from the Auschwitz tattoo on her arm.
The defence team included several high-profile and respected historians, including Richard Evans, Robert Jan van Pelt, and Christopher Browning. Beginning with the first part of the defence strategy, Browning submitted a report, “Evidence for the Implementation of the Final Solution,” with the intention of establishing clear evidence of a Nazi plan to exterminate Europe’s Jews. Browning argued that Irving’s belief that the lack of a direct written order from Hitler proved the Holocaust did not occur was incorrect. Referencing statements Hitler had made to leading Nazis, Browning stated that Hitler’s wishes regarding the Jews were clear, negating the need for a specific written order. Browning’s report also rejected Irving’s claim that there was no reliable evidence as to the size of Europe’s Jewish population, pointing to the lack of access to Soviet records.
Van Pelt submitted a 700-page record outlining the evidence for the existence of gas chambers at Auschwitz. Irving had once stated in a speech that, ‘more people died on the backseat of Senator Edward Kennedy’s car at Chappaquiddick than ever died in a gas chamber at Auschwitz.’ Van Pelt, as an expert on Auschwitz, mostly made Irving look like an amateur historian, particularly with his presentation of architectural drawings of the gas chambers. Following his testimony, the judge would have been in little doubt that the gas chambers at Auschwitz were not designed to be air-raid shelters for SS officers as Irving contended, but specially designed for the purpose of murdering large numbers of people via Zyklon B. For example, the doors of the chambers opened, as van Pelt stated, ‘the wrong way’. This was because as people realised what was happening they would rush to the door. If SS officers had had to push against the weight of many bodies to open the door it would have been an impossible task. Instead, the door opened outwards for this reason.
Richard Evans, along with two assistants from Cambridge, had spent two years prior to the trial examining Irving’s work. Evans contended that Irving had misinterpreted evidence, and used forged documents, concluding;
All of them [Irving’s works] are completely worthless as history, because Irving cannot be trusted anywhere, in any of them, to give a reliable account of what he is talking or writing about. if we mean by historian someone who is concerned to discover the truth about the past, and to give as accurate a representation of it as possible, then Irving is not a historian.
Irving had a half-hearted attempt to gain back ground by stating that his ‘processes’ for interpreting evidence were no different to those of other historians, but it had little effect. Evans’ ability to countenance any of Irving’s arguments regarding historical fact with a more convincing counter-argument made him an extremely effective witness for the defence, with Gray J later stating that, “in the course of his prolonged cross-examination, Evans justified each and every one of the criticisms on which the Defendants have chosen to rely.”
In his closing statement Irving said that is, “reputation as a human being [and] as an historian of integrity,” were on the line. On the charge of anti-Semitism, Irving argued that statements he had made, presented by the defence, had been taken out of context, effectively turning himself into the victim.
Gray J delivered his 349-page judgment in April 2000, extensively examining the evidence presented, whilst insisting that it was not his role, as a judge, to make a judgement as to historical fact in Nazi Germany. Ultimately, he delivered a rather scathing judgment in favour of the defence, stating that Irving ‘deliberately misrepresented and manipulated historical evidence,” due to his own ideological beliefs. Further he stated that, “he is anti-Semitic and racist, and that he associates with right-wing extremists who promote neo-Nazism.” Irving appealed the judgment but his application was denied in July 2001.
Reflecting back on the trial, it would appear to have been a failure for Irving. Not only did the judgment go against him, but the trial failed to turn into what he wanted; namely, a trial on whether the Holocaust occurred. Furthermore, his inability to cross-examine a survivor, or indeed Lipstadt herself, assisted the defence in keeping the trial mainly about Irving’s distortion of historical fact and anti-Semitism.
Therese O’Donnell in Judicialising History or Historicising Law: Reflections on Irving v Penguin Books and Lipstadt found that the trial, “clearly contributed to the Holocaust’s historical identity – how it is written about, described and represented as a historical event.” However, O’Donnell found that the trial highlighted difficulties in providing legal context for the interpretation of historical evidence but stated that, “the judgment cannot resurrect the dead, but it does reinforce law’s role in ensuring that the historical evidence of lives and deaths of millions will not be misrepresented or distorted.”
Richard J. Evans, in his book Lying About Hitler: History, Holocaust, and The David Irving Trial states that, “If Irving had won, it would have been a resounding defeat for professional history,” but instead it, “taught the difference between real history and politically motivated propaganda.” Evans found that the trial represented a defeat for Holocaust deniers, who through their manipulation of historical evidence, seek to demean the horrific experiences of survivors.
 It should be noted that, in a legal context, the United Kingdom can be divided into three separate systems. England and Wales, Scotland, and Northern Ireland operate under differing legal systems and not every Act of Parliament applies across the entire United Kingdom. For our purposes, the legal system and legislation of England and Wales will apply.
 Race Relations Act 1965 s1(1)
 Race Relations Act 1976 s1
 Ibid ss43-52
 Equality Act 2010 s4
 Racial and Religious Hatred Act 2006 s1
 Ibid s29(j)
 Institute for Jewish Policy Research, ‘Combating Holocaust Denial through the law in the United Kingdom‘  3, 3
 Ibid, 19
 Ibid, 23
 David Irving v Penguin Books and Deborah Lipstadt  EWHC QB 115
 D Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory (1st edn, Penguin, 1993)
 R v Zündel  2 S.C.R. 731
 United States Holocaust Memorial Museum, ‘About the Museum’ (2017)<https://www.ushmm.org/information/about-the-museum> accessed 4 August 2018
 D Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory (1st edn, Penguin, 1993), 181
 David Irving v Penguin Books and Deborah Lipstadt  EWHC QB 115, 4.7
 BBC, ‘Judge: Why Irving had to lose’ (BBC, 11 April 2000)<http://news.bbc.co.uk/1/hi/uk/709517.stm>accessed 4 August 2018
 D Lipstadt, Denial: Holocaust History on Trial (1st edn, Harper, 2006) 142
 R Evans,. “Chapter 6. General Conclusion”. Expert Witness Report by Richard J. Evans FBA, Professor of Modern History, University of Cambridge. Holocaust Denial on Trial. Retrieved 21 December 2013. https://www.hdot.org/evans/#evans_6.html
 David Irving v Penguin Books and Deborah Lipstadt  EWHC QB 115 13, 10
 ibid 13 167
 Therese O’Donnell, Judicialising History or Historicising Law: Reflections on Irving v Penguin Books and Lipstadt, 62 N. Ir. Legal Q. 291 (2011) 319
 Ibid, 320
 R Evans, Lying About Hitler: History, Holocaust, and the David Irving Trial (1st edn, Perseus, 2002) 265
 Ibid, 266
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