The Committee consisted of the following Members:
Chairs: † Sir Christopher Chope, Judith Cummins
† Bacon, Gareth (Orpington) (Con)
† Britcliffe, Sara (Hyndburn) (Con)
† Bruce, Fiona (Congleton) (Con)
† Donelan, Michelle (Minister for Universities)
† Glindon, Mary (North Tyneside) (Lab)
† Hardy, Emma (Kingston upon Hull West and Hessle) (Lab)
† Hayes, Sir John (South Holland and The Deepings) (Con)
† Holden, Mr Richard (North West Durham) (Con)
† Johnston, David (Wantage) (Con)
† Jones, Mr Kevan (North Durham) (Lab)
† McDonnell, John (Hayes and Harlington) (Lab)
† Nichols, Charlotte (Warrington North) (Lab)
† Russell-Moyle, Lloyd (Brighton, Kemptown) (Lab/Co-op)
† Simmonds, David (Ruislip, Northwood and Pinner) (Con)
† Tomlinson, Michael (Lord Commissioner of Her Majesty's Treasury)
† Webb, Suzanne (Stourbridge) (Con)
† Western, Matt (Warwick and Leamington) (Lab)
Kevin Maddison, Seb Newman, Committee Clerks
† attended the Committee
Professor Kathleen Stock OBE, Professor of Philosophy at University of Sussex
Dr Arif Ahmed MBE, Reader in Philosophy (also Fellow of Gonville and Caius College) at Cambridge University
Trevor Phillips OBE
Professor Nigel Biggar CBE, Regius Professor of Moral and Pastoral Theology at Oxford University
Public Bill Committee
Tuesday 7 September 2021
[Sir Christopher Chope in the Chair]
Higher Education (Freedom of Speech) Bill
We are now sitting in public and proceedings are being broadcast. I have a few preliminary announcements. The first is that obviously there is not room for all the members of the Committee to sit around the horseshoe. Therefore, some are already sitting in what we used to call the Public Gallery. For those who are sitting in those places, it will not be possible to speak from that position, so if you wish to speak you will need to go to the microphone, which is situated over to the right. I am very sorry, but that is the disadvantage to those who have arrived and found themselves without a seat around the horseshoe.
We are asking people with speaking notes to send them to email@example.com, but I hope that this morning’s proceedings will be rather brief and we that will concentrate on questions rather than statements. We will obviously try to keep mobile phones off and ensure that we do not breach the rules in relation to refreshments: tea and coffee are not allowed during sittings. Today, we will first consider the programme motion, then the motion to enable the reporting of written evidence, and then a formal motion to sit in private while we discuss among ourselves who will do what in relation to asking questions of our witnesses.
I call the Minister to move the programme motion standing in her name, which was discussed yesterday by the Bill’s programming sub-committee. I think that the Committee will probably be in agreement.
Thank you, Sir Christopher. I beg to move,
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 7 September) meet—
(a) at 2.00 pm on Tuesday 7 September;
(b) at 3.30 pm and 5.30pm on Monday 13 September;
(c) at 9.25 am and 2.00 pm on Wednesday 15 September;
(d) at 11.30 am and 2.00 pm on Thursday 16 September;
(e) at 3.30 pm and 5.30pm on Monday 20 September;
(f) at 9.25 am and 2.00 pm on Wednesday 22 September;
2. the Committee shall hear oral evidence in accordance with the following Table:
DateTimeWitnessTuesday 7 SeptemberUntil no later than 10.30 amProfessor Kathleen Stock OBE, Professor of Philosophy, University of Sussex; Dr Arif Ahmed, Reader in Philosophy, University of Cambridge and Fellow of Gonville and Caius CollegeTuesday 7 SeptemberUntil no later than 11.25 amTrevor Phillips OBE; Professor Nigel Biggar, Regius Professor of Moral and Pastoral Theology at the University of OxfordTuesday 7 SeptemberUntil no later than 2.45 pmProfessor Stephen Whittle, Professor of Equalities Law, Manchester Metropolitan UniversityTuesday 7 SeptemberUntil no later than 3.30 pmShakespeare MartineauTuesday 7 SeptemberUntil no later than 4.15 pmPolicy ExchangeTuesday 7 SeptemberUntil no later than 5.00 pmFree Speech UnionMonday 13 SeptemberUntil no later than 4.15 pmProfessor Eric Kaufmann, Professor of Politics, Birkbeck College, University of London; Professor Matthew Goodwin, Professor of Politics and International Relations, University of Kent and Director of the Centre for UK Prosperity at the Legatum InstituteMonday 13 SeptemberUntil no later than 4.45 pmBritish FutureMonday 13 SeptemberUntil no later than 5.15 pmOffice for StudentsMonday 13 SeptemberUntil no later than 6.00 pmJonathan Grant, Professor of Public Policy, King’s College London; Paul Layzell, Principal, Royal Holloway, University of LondonMonday 13 SeptemberUntil no later than 6.45 pmAntisemitism Policy Trust; National Union of Students
Tuesday 7 September
Until no later than 10.30 am
Professor Kathleen Stock OBE, Professor of Philosophy, University of Sussex; Dr Arif Ahmed, Reader in Philosophy, University of Cambridge and Fellow of Gonville and Caius College
Tuesday 7 September
Until no later than 11.25 am
Trevor Phillips OBE; Professor Nigel Biggar, Regius Professor of Moral and Pastoral Theology at the University of Oxford
Tuesday 7 September
Until no later than 2.45 pm
Professor Stephen Whittle, Professor of Equalities Law, Manchester Metropolitan University
Tuesday 7 September
Until no later than 3.30 pm
Tuesday 7 September
Until no later than 4.15 pm
Tuesday 7 September
Until no later than 5.00 pm
Free Speech Union
Monday 13 September
Until no later than 4.15 pm
Professor Eric Kaufmann, Professor of Politics, Birkbeck College, University of London; Professor Matthew Goodwin, Professor of Politics and International Relations, University of Kent and Director of the Centre for UK Prosperity at the Legatum Institute
Monday 13 September
Until no later than 4.45 pm
Monday 13 September
Until no later than 5.15 pm
Office for Students
Monday 13 September
Until no later than 6.00 pm
Jonathan Grant, Professor of Public Policy, King’s College London; Paul Layzell, Principal, Royal Holloway, University of London
Monday 13 September
Until no later than 6.45 pm
Antisemitism Policy Trust; National Union of Students
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 9; the Schedule; Clauses 10 to 12; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 23 September.
The motion will ensure that the Committee has sufficient time to fully scrutinise this piece of legislation. I am delighted that the House has been given the time that it requires to thoroughly debate the contents of the Bill, and draw evidence from the experts, many of whom, I am pleased to say, my Department is already talking to or working closely with, such as Nicola Dandridge of the Office for Students, Danny Stone and Trevor Phillips. I therefore invite colleagues on the Committee to agree to the motion.
Question put and agreed to.
We will therefore proceed to line-by-line consideration on Wednesday 15 September. That means that the deadline for tabling amendments to be considered on the first day is the rise of the House on this coming Friday, 10 September.
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Michelle Donelan.)
Copies of written evidence that the Committee receives will be made available in the Committee Room, and will be circulated to Members by email.
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Michelle Donelan.)
We now move into private session to discuss lines of questioning. Members of the public who are present, and officials, will need to absent themselves —hopefully not for very long.
The Committee deliberated in private.
Examination of Witnesses
Professor Kathleen Stock and Dr Arif Ahmed gave evidence.
We have our first panel of witnesses, so a very warm welcome to Professor Kathleen Stock and Dr Arif Ahmed. We will go straight into the questions. As always, time is of the essence and it would be much appreciated if you keep your remarks directly related to the questions and keep them as brief as possible.
Q Thank you for joining us this morning, Professor Stock and Dr Ahmed. I have a couple of questions I wish to raise with you, Professor Stock. You suggested in a recent Guardian article that university management groups and vice-chancellors have been unable to
“manage the modern problems around suppression of academic freedom.”
Yet, every university I have spoken to already has a code of practice on the freedom of speech and academic freedom. Many, including King’s College London, have based their code of practice on the renowned Chicago principles. If universities are already under a duty to protect academic freedom and freedom of speech under the Education (No. 2) Act 1986, how can it be said that university management groups are failing in their duty to uphold academic freedoms?
Professor Stock: I think that the traditional problem of academic freedom has expanded. Several relevant factors are now in play that were not before, including the internet, which is the most obvious one, social media, academics being encouraged to engage online, student fees, encouraging us to think of students as customers, competition with student recruitment and encouraging universities to present their most PR-friendly face towards students, which might involve playing up certain political views that students have to attract them and being rather embarrassed about certain political views that they think will not attract those students.
It might also involve—it certainly does involve—bringing activist groups in to do equality, diversity and inclusion. It appears to me there is no oversight on how these new factors, which are significant, are impacting on individual academic freedoms within institutions. It is not really institutional autonomy; it is about individual freedom or unorthodox, non-conformist thinkers being able to say, write or think what they want. I think there is plenty of evidence that that is being chilled.
Q Is that something you have witnessed yourself?
Professor Stock: Yes, I have experienced it myself. I have submitted some written evidence, which I am sure you will see. Various things have happened to me. There is evidence of students, colleagues and various other bodies, but the important point is the message it sends to others. What I get is private correspondence from lots of academics saying that they are genuinely frightened, whether rightly or wrongly, but they are frightened to say what they think about matters of controversy.
Even if universities think that in reality these people would not be censured, the fact that they believe they would be censured is enough to chill academic freedom, and that is a problem for what university is for, which is producing knowledge and understanding.
Q You will have read the Bill. How do you envisage that the provisions in the Bill are going to protect the likes of yourself and others from these supposed threats to academic freedom?
Professor Stock: The Bill is quite vague, so it is going to need a lot of guidance, concrete examples and accompanying notes. The main point of it, which is to impose a duty on universities to act and promote a culture of academic freedom, should be, if it is done right, a countervailing weight against the irrationality that can be found among some academics and some students, and universities’ apparent inability to deal with it.
As for just having academic freedom in people’s minds, I think most students are not even aware of what that means. Quite a lot faculties do not really know what it means. Being aware of the law as it stands would be good, as would having discussions about the value of academic freedom, and thinking all the time of how this new equality, diversity and inclusion directive relates to academic freedom. There are a lot of moving parts in a university. It is complicated and legislation is always changing. To have a focus on that constantly would be great.
Q Are you suggesting that the University of Sussex does not promote academic freedom of speech?
Professor Stock: I am suggesting it could do better. It says it does, but that is not my experience. For instance, it hardly ever advertises a thing I do, and I do fairly high-profile things. Normally, a university would be very keen to advertise the high-profile things that its academics do, so why is that? It could be concluded that it finds me embarrassing because it has to sell Sussex to students, particularly left-wing students, particularly north London students. That is a difficult demographic to manage when dealing with the issues that I deal with.
Sussex is not out of line with the sector. I talk to lots of colleagues at other universities and they say the same thing. There is the problem of basically selling yourself to students, which is obviously going to interact with matters of pressing social importance that do not quite square with what students think.
No, but we all tend to speak from personal experience because it is more direct and authentic. Do you not find, when institutions could improve, it is actually about some changes within, and that perhaps you do not need legislation to force it through? It is thought very widely that this is a sledgehammer to crack a nut.
Professor Stock: The problem is that unfortunately we do need legislation, because universities have not got on top of this. With the people I am talking to, and the stuff that I refer to in my written evidence, we are not talking just about deplatforming. I know there is a focus on public events and public speaking. There is a range of areas where speech is being suppressed or controlled, where junior academics are being put on vexatious complaints for expressing their perfectly legitimate academic views, and where people are being very cautious about what they teach because they want to avoid controversy.
If universities had been able to get on top of all of that, they would have done, I assume, but they have not. In some cases, they just deny the problem. This legislation says that there should be a positive duty to promote academic culture. That could be a very positive, forward-looking initiative; it does not have to be heavy-handed, although obviously it has the capacity to be punitive. But there is also the dimension of encouraging universities to examine what the value is of academic freedom, which is not a discussion that I see happening.
Q There is legislation already, in the Education Act. What you are saying is that that is not working. If I follow your argument, universities are not following that because what they want to do is to ensure that they have not got individuals like you or perhaps other academics who are going to put off students from being attracted to those universities, because of their views. To follow it to a logical conclusion, is not the ultimate thing that is going to happen this? If the only motivation behind it is that somehow they feel that if they allow you and others to express your different views—which I fully support, personally—that will put off students from going there, are they not going to just not employ people like you?
Professor Stock: I am not a lawyer, but I assume that there should be some discussion of how recruitment happens and—
Q That is not covered by the Bill. If the logic of your argument is that the reasons why universities are not—
Professor Stock: I think that is already happening, for what it is worth, so I am not sure you are going to be able to change that in any way. I think that people are coming to interview on the basis of their views.
Q Is not the logical conclusion to what you are saying, your argument, this? You are saying that institutions are not using the existing law, which is there to protect academic freedoms; you have said, in the evidence that you have just given, that it is because they are afraid of not attracting students because of people like you or others having views that might be hostile to them. Is that not linked to the fact that what universities will do is just not employ people like you?
Professor Stock: I understand the question; I just do not really see how this—you have not pointed to a particular aspect of the Bill that would encourage that situation. I think that situation may already be in place. Arguably, if we change the culture of universities so that people—administrators as well as academics and students—come to understand why it is a good thing to have viewpoint diversity and a good thing to have civil disagreement, that might be less likely to happen. This should not just be a bureaucratic, box-ticking exercise. Done right, it should change the culture of the university sector, and that will have ramifications for far more than the university sector, I think; it will have good, positive implications for civil discourse generally. However, I do not see how this is going to somehow increase the chances of people being excluded on the basis of their views at the recruitment stage. We are still at HR—
Q But your main argument was the fact that somehow this legislation was needed because universities were not going to employ, not wanting to get, people like you, because it was turning off students from going to those universities. There is a system in legislation, in the Education Act, to protect those academic freedoms. All I am saying is that if you do this, if you are saying that your main argument is that they are doing it—
Professor Stock: It is one of my arguments.
Q Well, your main argument is that their argument is that they are doing this because they are afraid of putting off potential recruits to their universities. The ultimate conclusion to that is that they will just not employ people like you, which I do not agree with, but—
Professor Stock: I have answered that to the best of my ability. I have understood the question each time you have asked it and I have answered to the best of my ability.
Dr Ahmed: My understanding—maybe I have got it wrong—is that new provision A1(9) does mention the case where someone is applying to be an employee of one of these institutions, and they will not be adversely affected by virtue of their free speech expression in those circumstances. It is my understanding that the Bill does say something about that.
The second thing that I would say is that independent of the issue about universities employing or not employing people in order to attract students, the Bill would have the effect, I believe, of discouraging students from thinking that they could put pressure on universities to fire or discipline people by virtue of their views, so it would prevent mobs from forming, mobs that have formed against people I know at Cambridge and other people in the country, because they would know that it would not have an effect.
Q In a previous life, I was a trade union official, and can I just say to you that employers will find very clear ways of not employing people, to get round any type of legislation? It will not be on the basis of your views; it will be for some other reason, so this does not give a great deal of protection for those individuals anyway.
Dr Ahmed: I do not think that the employer—that is, the management of the university—gets up in the morning and thinks, “How am I going to stop free speech? How am I going to fire these people?” They are responding to pressure from what I think is quite a small group of activists within universities. If this legislation has the effect of creating some kind of countervailing pressure, then you are right. Of course it is not going to solve the problem; I have been a trade union official myself and I know something about what these issues are. Of course it is not going to solve the problem, but it will help, because I think it will create pressure in the opposite direction.
Q Dr Ahmed, you have previously discussed a soft censorship approach. Can you explain what that is and the impact that you think it will have or that it is having on universities?
Dr Ahmed: You can distinguish between hard censorship and soft censorship. Hard censorship, in my understanding —the distinction is evident in the written evidence that I submitted—means universities actively suppressing certain kinds of speech by enacting certain kinds of regulation. I think we have seen different examples of that, which I am happy to discuss.
Soft censorship is where there is not any regulation, but people know—people sense it themselves, because they know that if they say this, or they say that, or if they present these views, they will be regarded adversely. If they are a student, they might be ostracised
. It might make difficulties for their academic career. That is the result. Because, as it happens, we have an academy, which, at least in some parts, is predominantly in one part of the political spectrum, the result is that certain kinds of research do not get done and certain kinds of views do not get defended by people who, in their hearts, perhaps, believe in them.
Q I have a question to both of you, following up on the earlier questions. The existing legislation ensures that there is a duty to protect free speech and this legislation goes further in terms of promoting free speech. Do you think that is vital to changing the culture on campus?
Dr Ahmed: Yes, I do. Obviously the Bill itself does not go into great detail as to what it means by the word “promote”, and I think that is sensible, because it may mean different things in different institutional contexts, but it could mean, for instance, things like events at induction for students, so that people are made aware in ways that they are not now made aware, certainly at my university, just how essential freedom of speech and freedom of thought is to the very functioning of the university, and indeed to being able to function as an adult in a healthy democracy.
It could mean things like making it central to decision-making processes at all levels of the university, so that when we make decisions, we do not just think about the equality and diversity implications of this planned decision, which we do as a matter of course, but that it becomes just as reflexive that we think about the free speech implications of a measure. That is something that certainly Cambridge and I expect most other universities and other academic bodies are not doing.
Q Professor Stock, do you want to come in?
Professor Stock: I echo that. I think it was implicit in my earlier answer, that one of the attractive things about this Bill is the promotion aspect—that it is not just a defensive crouch and it is not just punitive; there is an opportunity. I believe in academic freedom, so I think I could explain to people why it is an important thing and we could discuss that—argue about it, even. It would be encouraging that sort of aspect of university life, which would have knock-on effects all over the place—on Google in particular.
Q I have one final question to Dr Ahmed. At Cambridge, you successfully put forward the amendment, which I am sure everybody around the table is aware of, altering the requirement of “respecting” to “tolerating”. Why do you think that amendment was needed?
Dr Ahmed: That was one of three amendments that went through on a large majority. The reason for the concern was that the use of the word “respect” and the requirement for respect in that context meant respect for all kinds of ideas and identities as well. That would preclude, for instance, mockery. It would preclude views that give offence to people who hold religious views. My own particular interest is religion. For instance, I teach the work of David Hume. David Hume was about as offensive in his mocking of religion as anyone was in the 18th century. Would I be able to teach that, because his views were certainly disrespectful towards religion?
Another point, of course, is that whether something counts as respectful depends on how willing the person you are disrespecting is to take offence. So, more sensitive people will end up with a kind of veto. We all have our own examples of people who are especially sensitive taking offence. Those people will end up having power over what we can say and what we cannot. The effect would be absolutely to strangle any form of rigorous academic discussion over the most important things in life. That was why I thought the word “tolerate”, which has no connotations of admiration and is completely compatible with mockery—it simply rules out stopping people from practising or having those beliefs—was more useful, and, evidently, many of the dons at Cambridge agreed.
Q Good morning to you both and thank you for being here. On the issue of academic freedom, I want to turn to what the Bill does and does not say. I am looking at the evidence submitted by your friend, I think, Professor Ross Anderson. His concern is around changing the wording in the Bill from
“freedom within the law to question and test received wisdom”
“freedom within the law and within their field of expertise”.
I have concerns that a Bill that is allegedly intended to promote academic freedom could in fact limit academic freedom if you are limited to defining what is your field of expertise. I welcome your comments on that.
The other point in the Bill which concerns me around the alleged promotion of academic freedom versus the reality of the Bill is that it talks about academics and not academic staff or those working within the university. They seem to be exempt from coverage under the Bill, as are visiting academics. What are your thoughts on what the Bill does to promote academic freedom? Where can it be strengthened or changed to actually promote the academic freedom that I believe we all support? Maybe Kathleen first.
Professor Stock: I suspect that we differ on this answer, but I think the difference between academic freedom and freedom of expression, assuming there is one, can only be in principle grounded in expertise. That is what makes the difference between the person who has freedom of expression generally and the person who has special protections as an academic. To put it briefly, that is because academics are perceived to have a certain authority, so their authority should be rigorously tested. They should not be able to get away with just saying, “It is just like this, and you have to accept my word for it.” At the same time, there will be people who want to shut them up or buy them off, so we have to keep them protected.
However, I do see that in practice in a university it might be quite difficult to distinguish between these. For instance, there are a lot of professional services that have PhDs who are looking to get into academia. There are students studying and also working for the university in various capacities, so the blurring is quite present. In practice, it might be that that clause does cause problems and may need to be rethought. In principle, though, that is the rationale for this whole conversation on expertise. There is a further discussion about how to differentiate different fields of expertise.
Q Yes. We had evidence on this issue around a field of expertise and the overlapping between the different academic areas and who would define whether you have a field of expertise in one area versus another. Sorry, I am talking instead of you.
Dr Ahmed: I agree with Professor Anderson’s point with regard to the clause about a field of expertise for a few reasons. One is that, as Kathleen says, there are difficulties around defining a field of expertise. To use an example reasonably close to my own heart, if you take Professor Richard Dawkins, one could argue that theology is not his area of expertise. Many theologians would argue that it is not even his area of competence. I would dispute that myself, but it could be argued. Nevertheless, we would certainly want a Bill that protects his freedom to muse about religion as he likes. That is one issue.
The second issue, which is one Professor Anderson showed very well, is that much innovation in science—and I use the word “science” very broadly—comes from cross-fertilisation between fields. Biologists might have insights into economics, let us say, even though it is not their field of expertise or perhaps even their field of competence. That is often where the really interesting and innovative insights come from. A Bill that restricts academic freedom to one’s area of expertise might well have a chilling effect on those kinds of interactions. For both those reasons I agree with Professor Anderson’s suggestion that the restrictions of expertise should be dropped.
With regard to your important point about whom the Bill covers, the way I think of it is that universities are institutions that have public money. They serve a public purpose and it is essential that that involves free speech, freedom of inquiry and freedom to exchange ideas. Therefore, the simplest way to achieve that would be to have a Bill that covers all staff at universities and all students, rather than making what are possibly invidious and certainly difficult-to-draw distinctions between all academic members of staff.
Q Do you therefore include visiting academics as well? Further to that, in the evidence from James Murray, he talks about the Bill as it is currently written almost giving primacy to student freedom of speech over academic freedom. What are your thoughts on that? For example, from the evidence that he has given, the Bill says that institutions must have regard to freedom of speech, but, many times in the Bill, it does not add “and academic freedom”. Do you share those concerns that the Bill, as it is written, could give primacy to students’ freedom of speech at the expense of academic freedom?
Dr Ahmed: Well, I certainly do. You say there is a concern that it takes a heavy emphasis on students’ freedom of speech and things like that, but it is one of the things that has been under threat.
Q But for institutions and those working in institutions, surely we should be promoting academic freedom?
Professor Stock: I took it as implicit. I did think it was slightly confusing because those two things are usually theoretically distinguished—“What is the difference between freedom of speech and academic freedom?”—so it is a bit confusing that “freedom of speech” is the phrase. However, given the context of “Higher Education (Freedom of Speech)”, I thought “Well, this just must be about academic freedom” but, in terms of drafting, that could be clarified.
I would just add, on who it applies to, I think the more temporary and precarious the person’s position, the heavier the duty we have to protect their speech. It is well understood in classical discussions about academic freedom that being in fear of losing your job, of not getting a promotion, or of not pleasing your supervisor, would give you extra reasons to be quiet, to self-censor and so on, so I think it is important that it applies to temporary and part-time positions.
Q And we have that sort of counterbalance that, if academic freedom is to be genuinely protected, I think it does need to be more explicit in the Bill. Would you like to comment on that?
Dr Ahmed: I do agree with that, but, of course, there are plenty of examples, as we know, of students who have also suffered adverse consequences. As I understand it, the term “adverse consequences” is defined in the Bill for academics, but is not defined for students. However, under any natural understanding of the term, students have suffered adverse consequences by virtue of disciplinary investigations, which have often gone on for months—even if no finding was issued against them—for things that were not illegal and were, at worst, slightly shocking. I think, in some ways, it is worse for people who are 18 or 19 than for someone like me to have to go under a discrim investigation; it could ruin their entire career.
I will bring in another one. You can come back later, if there is time. We are pressed for time, because this panel must finish by 27 minutes past 10.
Q Dr Ahmed, in your evidence you say that there are several threats to free speech in higher education. You talk about two: self-censorship and regulation. Could you unpack those a little more, and tell us how widespread those problems are and what evidence you have of them?
Dr Ahmed: With regards to self-censorship, I mean something similar to what I said to the Minister when I mentioned self-censorship: people simply not saying things that they think on matters that are important, or not pursuing lines of research that they think might be fruitful, because they fear the consequences, whether that is full disciplinary action or some other form of ostracism, such as being overlooked for a promotion or various other things. That is what I mean by self-censorship.
The principle bulk evidence that I have is from the University and College Union survey of 2017, which was included in the report for the UN in 2019. It says that 35.5% of UCU members who answered the survey said that they self-censored, compared with something like half that percentage for the rest of what was then the EU.
That is roughly what I mean by self-censorship. I have come across plenty of examples of that. When I was campaigning for the liberalised free speech policy at Cambridge, many people said to me that there are a whole range of issues—from issues to do with race, with transgender, and with Israel and Palestine—on which they were simply unwilling to say what they thought because they feared the consequences. Those are obviously matters of huge importance. That was the first thing—self-censorship.
The other thing that I mentioned was regulation; perhaps I should say micro-regulation, because what I mean is universities placing formal obstacles in the way of people saying things that are perfectly legal.
To give one example, my own university recently put forward a policy, which has now been withdrawn, on discrimination and harassment, which included a variety of things regarded as micro-aggressions. These are things we should avoid. None of them is illegal, as far as I can tell. In fact, on some of them, particularly the one in my case to do with religion, if I had actually heeded that policy it would have impeded my own teaching and professional activity.
Q You say that the Bill, although plainly not enough in itself, could be a first step
“towards recreating a culture of robust and completely open debate without which a university education loses much of its point.”
How effective will the Bill be in achieving that, and what more do you think needs to be done?
Dr Ahmed: With regards to how effective I think it will be, I would look at the Equality Act 2010 and the way in which that has created over the last 10 years a change in the culture of higher education institutions. It was not immediate; it was gradual and it occurred through the institutionalisation of certain values. More generally, the most important thing in human life, the most important determinant of human behaviour, is habit. If we get into the habit of speaking freely and of thinking about these things at all times, eventually it will feed into our values and into our ways of thinking about what a university should be, so I am reasonably optimistic. Obviously, it is an empirical question and there is a paucity of data, but in some way the 2010 Act gives me some hope.
Q Professor Stock, on a point that you raised, you are right that we need to ensure that freedom of speech in the academic field is regularly debated. We need to remind ourselves of the critical importance of it as well. My concern is that sometimes in Parliament we see an issue and we rush to legislate, which is not always well thought out as a result of the lack of preparation and consultation. The famous Dangerous Dogs Act 1991 is an example.
You expressed concern about some elements of the Bill. The Bill itself lays a huge range of conditions on student unions and university and academic institutions, and then it brings in potentially draconian sanctions, but we do not know what the sanctions are yet. They all reside at the moment with the Secretary of State. Do you share my view that if the Bill is to proceed, we have to be careful about unforeseen consequences? If we place a duty on a body, there should be a mechanism to ensure that the duty is exercised effectively and under advice as well. There are no advisory structures set out.
For example, you cited in your evidence various incidents that have taken place. There is no mechanism by which you can advise on how things can go forward. In addition, with regard to the sanctions, my worry is that although others might have confidence in the Secretary of State, I have never had confidence in any Secretary of State without direct accountability to Parliament that is open and transparent. At the moment we do not even have a schedule of what sanctions could be levied against institutions and individuals as well as student union bodies. In addition, we have introduced another opportunity for claiming a tort instead of going for a breach of duty as well, which is broadly framed in the Bill but is not specific.
When you raised this question, it struck home with me. Do you believe that there should be elements in the Bill that give us more guarantees about its implementation so that it is effective, accountable and transparent? That means building in mechanisms for future advice. It means being more explicit about the nature of the sanctions and how they operate. To be frank, if I were an administrator at one of these bodies at the moment, I would be working in the dark about how the Bill will be implemented.
Professor Stock: I can see that it is a risk. In a sense, every time you legislate, I assume you are a hostage to fortune to some degree because there is always—
We try to limit that risk.
Professor Stock: I am not saying that is a good aspect of any legislation. I agree that up to a point a lot is left unspoken. A lot depends on the interpretation of the Bill by whoever the free speech champion is. They are going to have to drive the project. It is going to be really important to get the right person and they are going to have staff, obviously, but I cannot reassure you on these points—I did not draft it.
I have read various critical responses to the Bill that talk about the possibility of vexatious complaints and lack of transparency, but it seems to me that, while I am not downplaying those as potential issues, we also need to remember that there are lots of vexatious complaints against individuals going on at the university level and there is a lack of transparency there. We are talking about institutions. There is more than one set of vexatious complaints to worry about and, arguably, only one of those ruins people’s lives, so that is to the forefront of my mind, but I accept that there is indeterminacy here, because I think there has to be legislation.
Q I completely understand that, but by addressing one type of vexatious complaint, you could be causing others. With regard to the point that you made about the director for freedom of speech and academic freedom, again there are no structures linked to that in—
John, I have to stop you there.
It is, but you are not the one giving the evidence. Dr Ahmed, do you want to say anything on this?
Dr Ahmed: I have relatively little to add to what Kathleen said on that point. The only thing I would add is that I would like to see a situation in which there was a possibility of extremely draconian measures against universities that are not fulfilling their basic function, and in an ideal world they would never be used.
Q I am going to use this microphone as instructed, Sir Christopher—my apologies for speaking from the wings. I refer members of the Committee and others to my entry in the Register of Members’ Financial Interests.
Dr Ahmed, you wrote in your evidence, and you have repeated it today, about self-censorship and how that had changed. Would it be fair to say that the culture in universities has changed quite radically? You mentioned the Equality Act, and you might just as well have mentioned the growth of the internet and the intimidation that is delivered through that. How far does that soft censorship, which you implied a moment ago, affect people’s prospects at universities—the acquisition of fellowships, promotions, funding and so on? What evidence do you have that that has changed in universities, in your academic experience and more widely?
Dr Ahmed: With regard to your point about the internet, I would echo some of the things that Kathleen said in her written evidence, to the effect that Twitter, for instance, allows the mobilisation of mobs, quite quickly, against individual academics. That has been one of the effects. As you said, in addition to the Equality Act, the internet has had an effect on that—by which I mean Twitter.
With regard to self-censorship, my own experience has been that it has changed drastically over the last 10 years. Now, for instance, one would regard it as a typical experience to be in meetings where things are being proposed where I certainly sometimes—rarely, in my own case—bite my tongue. I know that there are people who bite their tongues in the sense that they will not object to certain things that are pointless and stupid, simply because they are afraid of the consequences.
What are those consequences? It is different in different cases. In my own case, I have tenure, fortunately, and I am relatively secure, but for someone who is on a temporary contract, you do not even have to be fired or face disciplinary action. All that needs to happen is that you come to end of your temporary contract, which you would normally expect to be rolled over, which typically does happen in academia, and they will just decide for some reason—as one of your colleagues was saying, it can be quite easy to invent a pretext—“Well, actually, we won’t be needing you any more.”
People in short-term positions are, I think, especially vulnerable and are perhaps the ones who are most likely to self-censor. My own experience is that this is happening a lot more now than in the past. That is from my experience of meetings with decision makers at high and low levels within Cambridge University.
Q The implication of what you are saying is that a lot of that will be invisible, because we do not know what people do not say. We do not know who would have been promoted had they said something else, believed something else or taken other stands. Actually, what we may be seeing is the tip of the iceberg. Is that fair? We cannot know how many people are constrained by the culture you have described and by the capacity of the mob to pursue them.
Dr Ahmed: Correct. Of course, you are quite right that it is the tip of the iceberg. The evidence that we have—I am referring again to the UCU survey, which is the largest evidence base that we have—says that 35% of academics self-censor. When you think that that includes people who work in totally uncontroversial fields, such as Diophantine equations, that is a very significant proportion. There is some evidence, but, as you say, it is probably the tip of a huge iceberg.
Before you go, Sir John, may I ask you to expand on your interests?
I ask because, obviously, people do not have access to the register.
Q I have to declare an interest. I am a trustee at the University of Bradford union. I have received donations from the University and College Union. I was the UCU co-ordinator at the University of Sussex and I received money from that university to provide educational opportunities for their students. I would like to think that I work in the sector.
Professor Stock, thank you for your evidence. I must say, actually, that your vice-chancellor did sing your praises to me the last time that I met him and said how excited he was for you to be coming here to show the diversity of views at his university. He was very positive, actually, and I have the email to prove it. That might reassure you. He is leaving anyway, so we will see.
You have raised some really important points about making sure that there is diversity in views at a university. Is there a problem, however, if this is put in legislation, that that becomes too strictly defined as requiring balance? We have debates about the BBC and climate change denial, and the need to have equal airtime for people who disagree and for people who agree. Is there sometimes a necessity for a university to develop a course that is balanced not just numerically but also in terms of where the academic weight is?
Professor Stock: There is a useless way to balance and then there is a productive way to balance. The BBC is a completely different context, because often you have to present both points of view simultaneously, and they just start shouting at each other and nobody’s the wiser. However, on a course that extends through time, and possibly over years, it would be unacceptable not to balance. Balance just means going through lots of different points of view that disagree with each other and trying to work out what you think. It means telling the students that it is their job to work out what they think—that they are not necessarily supposed to agree with you just because you think something, but they are supposed to develop their own points of view.
What is happening at the moment, for me personally, is that—completely extraordinarily, relative to the norms of the sector—whenever I do manage to get an invitation to speak somewhere from some poor, hapless person who does not know my reputation in advance, complaints pile in, and they say, “We’ve got to find a trans person to be on stage with you for balance.” I have had the Francis Bacon keynote at the University of Hertfordshire completely changed in format—until covid meant that it did not happen anyway—just because this idea of balance was required. That is much more like the BBC kind of balance. I do not see why I should have had someone right there when no one else is required to have someone there.
Q Will the Bill not promote that perverseness? Rather than allowing an academic to speak within their own frame, the university will feel obliged to make sure that there is someone to speaks against—in the case you mention, a trans activist—when actually that totally distorts the ability of an academic to explore ideas without having someone jump down their throat every moment.
Professor Stock: You may know the Bill more intimately than I do—I have read it a few times—but I have not seen anything specific about viewpoint diversity. [Interruption.]
We can only have one person speaking at a time. Let the witness speak, please. [Interruption.] Lloyd, will you let the witness respond?
Professor Stock: I think I understand. I do not see anything in the Bill. I think that that is a danger. That is a particularly bureaucratic, shallow understanding of viewpoint diversity and balance. The guidance under the free speech tsar should absolutely avoid demanding that every strong articulation of position is immediately countered, chronologically, by its opposite. That would be facile. However, there are other ways of explaining what balance is, of conceptualising balance, that leave that out.
Q The devil is in the detail. You mentioned at the beginning of your evidence, in response to some of the questions, about part of the problem being that people are unsure, particularly those on short-term contracts, and that academics might not be promoted. Is the problem that you identify the very problem that UCU and many of us went on strike over only a few years ago—the gradual move towards temporary contracts in institutions, the move towards lack of tenure and requiring students to do teaching? It is not a problem of freedom of speech; it is a problem of giving people security in their workplace.
Professor Stock: That is a false opposition. It is both. Just for the record, UCU had adopted an irrational view on exactly the issues that I am engaged with. I am no longer a member of the union because it would not support me in my academic freedom, so UCU is not blameless in this area.
Q I draw the Committee’s attention to my entry in the Register of Members’ Financial Interests. I am an honorary fellow at Birkbeck College at the University of London.
The European convention on human rights is the main underpinning of most human rights rules in the UK, including freedom of speech. The UK, like most of the member states, goes well beyond what that says is the minimum. Given the international nature of academic research and the experiences that you have outlined, I am interested in your view on the adequacy of the minimum protections that that provides for freedom of speech and whether you foresee potential conflicts with other pieces of legislation—for example, inequalities that might result?
Dr Ahmed: With regard to tension with other legislation, I suspect there might well be tension with the Equality Act and difficult decisions to make about a breach of the duty to promote freedom of speech versus the duties imposed under the Equality Act, so I think there are issues that guidance should be able to sort out with regard to what counts. My understanding of the ECHR is that there is the strongest possible protection for academic speech, so almost nothing can count as harassment in a pedagogical context.
Q I am interested in two of the points that we have come back to a few times today. The first is around the distinction between academic freedom and freedom of speech. You referred to your view that in that context there is no such thing as harassment. I wonder, in relation to remarks made by the Secretary of State when the Bill was first announced, whether you think there is a limit to academic freedom versus freedom of speech and where that limit should be drawn. Holocaust denial was given as an example. To declare an interest, I am Jewish, so that is something that I am interested in.
Professor Stock: To clarify, do you mean the tension between academic freedom, freedom of speech and the rules against harassment?
Q And if you think there should be a limit in the Bill, or are you saying that in an absolutist context there should be absolute freedom of speech?
Professor Stock: I am not saying that, and I do not think the Bill says that, as I understand it. I think this sits within wider sets of laws about speech. I am not a free speech absolutist. The vast majority of the instances that we are talking about are perfectly within the law but are still being censored and having adverse consequences. I acknowledge that there are some kinds of speech that are criminal and should not be allowed in universities. I think the law is quite well set up to deal with things like that. I understand there is already a legal precedent on holocaust denial. I understand your concern—I really do. There is a defensive tendency for universities to leap to the most extreme example. If we adopt entirely or orient our attitude towards those examples, and if we are extra cautious because of these possibilities, we really lose a lot in the middle ground. These things are always difficult. You could not possibly sort it out in 30 minutes.
Dr Ahmed: I agree with almost everything that Kathleen says. There is a distinction between what the Bill says and what I think needs to happen with regard to free speech. With regard to the first point, the Bill as I understand it says free speech within the law, and therefore makes reference explicitly to existing legislation. The Bill therefore does not protect anything that is already illegal.
With regard to my own view, I am close to being a free speech absolutist. Like many people, I think that the law in this country is overly restrictive. Obviously there are some things, for instance to do with court proceedings, confidentiality of applications and so on, where it is proper that there are restrictions. But short of such things, we could be a lot more liberal than in fact we are. That, however, is a separate question from the content of the Bill.
Q Something a lot of people, particularly the Opposition, were asking on Second Reading was whether this is just a total sledgehammer to crack a nut. How big a problem is this self-censorship, really? We have seen the evidence today: that 35% of academics in the UK are self-censoring versus 19% in the EU. Is this something that is actually stopping you doing your work as academics?
Dr Ahmed: Yes, I believe that it is. For instance, I genuinely think that there are things now that I would hesitate to say. Because I am in the position that I am, I am prepared to say them, but I know many people who are not. There are questions that many people would hesitate to explore, so it is now stopping academics from doing their jobs.
Professor Stock: It is not stopping me doing my job, but is unreasonable to expect the average academic to have to go through the things that I have gone through and overcome the obstacles that I have had to. I have to do so much in order to be able to teach a class on feminist philosophy where I can say, “Here is what I think, and I can say this because I have all this research that backs it up,” and even then I get complaints, and colleagues will call me a bigot. It is not reasonable to put that as the standard for the average academic saying what they think.
My concern, in talking about my experience, is not, “Oh, feel sorry for me.” It is that people see this, and it sends a message. I just want to point out that, of course, self-censorship is by its nature quite hidden. Universities will say, “Well, nobody’s told us this.” There is a real elision in our culture between saying that something is right and saying that someone should have the right to say that it is right. People confuse those all the time. If somebody says, “I think Kathleen Stock should have the right to say what she thinks,” that can be interpreted as, “She’s right,” and then that person is called a bigot too. It is infectious.
Dr Ahmed: I forgot to mention that, of course, the issue of self-censorship affects students as well as academics. Many students are simply not asking questions. If you have a class about religion, immigration or trans issues, there are students who might want to ask questions that they genuinely want the answers to, philosophical or otherwise, which they are afraid to ask in class because of what will happen if they ask them.
Q We are running out of time; I think we have one minute. Can I just ask a final question to you, Dr Ahmed? In point 12 of your written evidence, you say that the Bill would require
“a credible mechanism for holding to account those that do not”
promote free speech. Do you view the Office for Students, as it is currently organised, as a credible body that is capable of delivering a credible mechanism?
Dr Ahmed: Broadly, yes, I do.
Q Even though its chair is a Conservative peer, is party affiliated and has made a donation to the Conservative party since his appointment.
Dr Ahmed: There are always concerns with the regulator —that it has to be impartial—and there are also concerns in this particular case. The question is the general impartiality of the regulator. I do not know anything about Lord Wharton. I would not be the right person to ask about that. If it is to do with the issue of free speech, what we need in a regulator is someone who has guts and principles.
Q If the Bill goes through, what would the measure of success be? You have talked about academic freedom, the chilling effect and self-censorship; these are things that exist in a very abstract way. You have referred to the UCU research. What would success look like to you?
Dr Ahmed: One thing would be that we could do self-reported self-censorship. That would be something that one could measure and that has been credibly measured. One could work out whether that was declining. The second thing would be that since the Joint Committee on Human Rights report in 2018, which has been cited I believe by members of the Opposition, I could think of about 45 cases that have come up since then—documented cases—of disciplinary action against harassment of students, staff and so on for things that they have said that were legal and those are all public, so a second measure of success would be a decline in those cases.
I am afraid that brings us to the end of this session. We have no option but to close now, but can I thank both our witnesses today? You have generated a very spirited discussion and stimulated this Committee. I think that is a really good precedent. Thank you very much for coming along.
Examination of Witnesses
Trevor Phillips and Professor Nigel Biggar gave evidence.
We welcome our second panel: Trevor Phillips OBE, who is joining remotely via Zoom, and Professor Nigel Biggar CBE, who is the Regius Professor of Moral and Pastoral Theology at Oxford University.
Q Welcome to you both. Thank you for joining us and for your written submissions. A question to both of you: English PEN, one of the world’s oldest human rights organisations, raised concerns about whether a director for freedom of speech and academic freedom will be a regulator, an adjudicator or an adviser on free speech issues? How do you envisage the role of the director? Do you have concerns over the independence of the role and whether the director could infringe academic freedom in and of itself?
Trevor Phillips: Good morning. Thank you very much for the invitation to join this conversation. I am, of course, a great respecter of English PEN and in my role—I guess I am principally appearing here as chair of Index on Censorship, which is the global freedom of expression advocate, 50 years old—we work rather closely with English PEN. Today we publish censored work in our quarterly magazine, build our “Banned by Beijing” campaign and fight for freedom of journalists, for example, in places such as Belarus.
The reason I make that point is that Index broadly supports the intention of the Bill, but coming to the specific question you asked me, from our point of view we look at this from the international perspective. Many of those who face censorship regard Britain as an exemplar and use us as a standard to aspire to. However, so do authoritarians of all political stripes. Any extension of the state’s power over speech at home can be used by those who want to as a means of, as an example, limiting freedom of expression. Your point about the regulator is an important one. To be honest, unless the regulator is actually a regulator of behaviour, there seems little point. Universities do not lack for advice of various kinds.
The important point about this post is that he or she should be a protector of the freedom of expression of students and academics—and indeed, by the way, those who are not academics. For example, there was a case in Cambridge where a porter essentially lost his job because of a view he expressed. In my view, if we are going to go down this road, that individual role has to be the role of a regulator and a protector of freedom of expression.
A very good example at the moment that is not much talked about is the position of international students. I welcome the presence of international students: I was one myself many moons ago. But we have concerns that certain countries—I am specifically thinking of China—covertly monitor and try to control the behaviour of their students. That has been exacerbated by the introduction of security laws in Hong Kong. It seems to me that a regulator should have the will, the power and the capability to ensure that those students and their right to express their opinions are protected.
Q Thank you. Can I ask Professor Biggar the same question?
Professor Biggar: One of your questions was whether the director would be simply an adviser or a regulator-adjudicator. Certainly the second, because he or she would be responsible for judging complaints. That is an adjudicator role. What is more, I imagine that one of the main jobs of the director would be to develop and publish guidance, which would carry authority, so it is more than just advisory.
I think your next question had to do with the impartiality of the director. Those who think there is no problem would prefer a director who agrees with them and changes nothing. Those who think there is a problem want a director who is going to effect a corrective bias. So, someone like me, who thinks there is a problem—and I guess the Government do, given the legislation—wants a director who has a certain partiality of that kind.
Beyond that, the director will occupy a public position. I take it that it will be made clear to the director that this is not to be used for private, partisan purposes. It is a public position. Whatever advice the director is to give will be within the law and it will have to take account of different bodies of law, the Equality Act on one hand and legislation dealing with free speech on the other. There are various constraints but I am not worried about that.
Q Can I come back to Sir Trevor? In November 2020, Sir Trevor, you wrote of a “dark edge of censoriousness” emerging. I think that was in an article that appeared in The Times. You will be aware of this creeping sense of Government interference in, say, the appointment of members to boards of trustees of museums and appointments to universities and elsewhere. Do you think that more oversight of the sector through the director will not be merely the inverse of the edge of censoriousness but will actually favour the Government?
Trevor Phillips: No more so than in any other Administration. By the way, there may be a sound problem, but I think you called me “Sir Trevor”. Her Majesty has not made that mistake; that would be a major error. The creeping edge of censoriousness is, to be honest, rather little to do with Government. There is often confusion about the word “independent”, particularly in higher education. People tend to use the word “independent” when they actually mean opposition to Government.
I do not think there is any danger of the higher education sector as a whole developing a culture of deference to the existing Government. My reference to the creeping edge of censoriousness was far more in relation to peer pressure and the emergence of self-censorship. We have noticed something at Index. Over the past couple of years we have run a campaign to try to increase the resilience of students in being able to express their opinions. We have run some training courses and so on. We do not think that the real big problem here is that everybody is looking over their shoulder and saying to themselves, “What does the Secretary of State for Education or Secretary of State for Culture think about what I am about to say in a seminar?” They are more concerned, if they are students, about whether an unfashionable or “unorthodox” view may get them marked down in exams. If they are junior academics, I think they are more concerned about whether their professors, who have no qualms about expressing their political views, may decide that the next time there is an opportunity for preferment, their views make them less likely to be favoured than someone else. My view about the issue of censoriousness is that it is far more a question of self-censorship. What we are concerned about, I guess, in relation to the legislation is that you can do quite a lot with law, but you need to support it with a clear cultural programme that supports, advocates and promotes diversity of opinion within the institutions.
Q My first question is to Trevor. You have spoken in the past about the erosion of free speech. How exactly do you think that the Bill will tackle that?
Trevor Phillips: It is a short Bill, which perhaps begins to close some gaps. Simply, the process of debating it will help to highlight some of the issues about which we are concerned, but the central proposition, which is that there should be some regulatory apparatus and guidance, is valuable. We think that it is important that there is not a wild west here. To be completely honest, my own view is that if the university authorities had been doing their jobs properly, behaved like grown-ups and taken responsibility for what is happening on campuses, this would not be necessary.
However, what in the last three to five years we have seen example after example of where university authorities have essentially abdicated their responsibility to protect their own academics and students. That is why the Bill appears to have value. Because the university authorities are not doing their jobs, the Government have felt it necessary to step in. That does not mean that I think that everything that is being proposed is absolutely on the money, but I can see why it is felt necessary to do something of this kind.
Q You have spoken before about people losing their livelihood for saying what they think is perfectly lawful. Are there any examples that you would be willing to share with the Committee?
Trevor Phillips: Some of these are public. There is the case of the Cambridge porter who said something that was regarded as disobliging on the issue of gender and trans. Eventually, he had to step down from his role. There is the case, again, of Noah Carl at Cambridge. I suspect that Professor Biggar will probably have more examples to offer you, but if you would like I can certainly follow up with a note on that.
If I may respond honestly, my view is that the bigger risk is not that there are a few celebrated, or notorious, I should say, cases of people who have lost their livelihood; the bigger issue for me is that what is happening now is that people can see that they could lose their livelihood and therefore do not engage in what universities are for, which is free and open debate and, even more importantly, unbiased, courageous inquiry. One of things that we know—this I cannot give you examples of, because I do not have permission—is that there are some lines of inquiry, not just in the humanities but in science, that are not pursued because people who would pursue them think that it would be too controversial.
Perhaps I can give you a very simple example. Twelve years ago, when I was in public office as chair of the Equality and Human Rights Commission, I tried very hard to get a university or some other research body to do some work on the academic success of children of Chinese heritage. For two years we offered money. No institution would take up that research project because they said—I had this from three or four of them—that it would stigmatise other ethnic groups. I thought that was an important thing to understand, not least because other minority groups and, we now know, the majority community in this country, could learn from the success of that group. Up until now—right to today—we have no knowledge of why that group is so consistently successful academically. That surely is one of the losses we are seeing because of what I may have called creeping censoriousness.
Q I have one last question to both panellists. The Bill is designed to protect lawful free speech, but some Opposition commentators have argued that it would protect unlawful free speech. Could you both clarify whether you share that view or whether you believe that the Bill would protect only lawful free speech?
Professor Biggar: My view is that the Bill would protect lawful free speech. The law as it stands prohibits speech that would incite violence or racial hatred or hatred against people for their religion and so on, and the Bill would not change that. We have already heard concerns about holocaust denial. Under the law as it stands, in the light of European Court of Human Rights case law, holocaust denial is not unlawful; it is just that if you give expression to such a view and you are denied a platform or suffer some detriment, you cannot claim the protection of the law. It is a delicate position. I do not think this Bill is going to protect unlawful speech.
The porter is not an academic member of staff. A porter is a non-academic member of staff, without academic privileges. My understanding is that they would not be covered under the Bill. Are you suggesting that the Bill would need to be expanded to all contractors? Most porters in most universities now are not even necessarily employed directly by the university; the services are subcontracted out. Are you saying that it should be expanded to all contractors—to everybody that the university has a relationship with?
Trevor Phillips: No. The individual was an employee, actually, in the same way as an academic.
Q I agree with you that it is very worrying when people are dismissed for expressing views that do not relate to their job—a porter expressing a political view one way or another should not make a difference. If it does extend to the porter, which I am not sure it does, why should they get different protections from a porter at a hospital or a supermarket? Should we not be talking about extending protections, if they are needed, to all peoples in all workplaces?
Trevor Phillips: I think I understand the premise of your question, but I do not really agree with it. The expression of an opinion, one way or another, should be protected, whatever your job. The reason that this particular individual ran into difficulty was not because he was not being asked to lecture students. He was a Labour councillor, and I think it was in that context that he uttered the views that were thought to be disobliging. The point here is that the censorship that is taking place is not just to do with what academics may be saying to their students in tutorials or lectures; the censorship here is being exercised against any individual who happens to be associated with the institution who may or may not take a view or write something in any guise.
We can take the case, for example, of Noah Carl. I do not agree with anything Noah Carl has written, by the way. However, the criticism of him was that he wrote an article in a journal that also published views that were disobliging; it was not actually about his views. The point here is that I do not think there is anything in this Bill, or indeed the harm that it is designed to remedy, that separates the questions of what might be said as part of a job and what might be said as a human being.
Q The Bill gives protection for people to express things within their field of expertise. That means academic staff, not people who profess views outside of their expertise; they could still suffer consequences according to the Bill. That is where we are.
To both of you, I am interested in who does the judging of where the limits of free speech are. You could say something controversial, something that somebody thinks is Islamophobic or antisemitic. In your view it might not be and you have the right to express that view, but surely there is a right to a backlash and for people to express their distaste for distasteful views. There is a right to offend, but there is also the right to be offended. How do you stop a chilling effect when stopping people’s right to express their distaste?
Professor Biggar: Of course people have a right to express distaste of any views they wish. My own view is that universities ought to be in the business of teaching future citizens to express their passionately held views civilly, rationally and robustly, without abuse. If universities do not train citizens to be civil in that fashion, we can expect violence on the streets way down the line, to be melodramatic. Within the law, it seems to me that universities should impose norms of civility on either side. But it is not just a matter of people expressing their distaste at gender-critical feminists or critics of Black Lives Matter or people who think the British empire was not entirely wicked. It is not just that; it is the use of political means to apply political pressure—not rational but political—and it is the use of aggressive abuse.
Q How do you limit people applying political pressure? What you are saying is that the regulator needs to come in and say that the university has not limited other people’s ability to apply political pressure. I get that universities should have guidelines about balance and civility, but if it breaks down and the regulator steps in, what is the regulator actually checking? That the university has not restricted other people’s political expression?
Trevor Phillips: There is no right to a backlash. In common law there is a right to protest in this country. I would have gladly seen something in this legislation that referred to that, but the truth is that we do have that right. The issue here is of culture and resilience. For far too long—10 years—I was chair of two regulators: the Commission for Racial Equality and the Equality and Human Rights Commission. Most of our work was not prohibitive; most of it was either permissive or educational. The EHRC publishes books and books of guidance, some statutory, most non-statutory. The aim of that kind of guidance is not to impose threats and hammers, but to give some idea of what the right norms are. That is why this is so important. There is a variety of informal ways in which freedom of expression can be suppressed without breaking any law that you could possibly draft.
Alongside the legislation, there has to be a programme of action to protect diversity of opinion within the higher education sector. That is part of the role of the regulator. The regulator is not a censor; it is there to moderate behaviour, and there are different ways in which that regulator might moderate behaviour. Some of it will be by prohibition and law, but most of it, for every regulator, is through guidance, encouragement, comparison, publication of best practice, and so on.
We ought not to get into a conversation where we simply think of this regulator as a revived Lord Chancellor, with his or her blue pencil, swooping on every campus, looking out for bad guys. The big part of this regulator’s work will be publishing work that demonstrates best practice and the code by which university authorities, and those who are under their aegis, can best guarantee and promote diversity of opinion and freedom of expression.
Q One of my concerns is self-censorship and the degree to which it already exists, not only among the academic body but also among the student body. By definition, it is quite difficult to measure self-censorship and the extent to which it exists. Could you outline how large a problem you believe it to be?
Professor Biggar: You are right that, by its nature, it is hard to detect and measure, but there is plenty of anecdotal evidence, and I can tell you from my own experience. The clearest evidence of fear and self-censorship among academics was mentioned by Arif Ahmed earlier: his experience in Cambridge of spending a month trying to get 24 academics to put their heads above the parapet to sign a bit of a paper backing a motion against university policy. It took him a month to get 24 people to do that, but when the vote was held by secret ballot, it went overwhelmingly against the university, by several hundred academics. When those academics were liberated to express their views in secret, they did it, but they would not do it in public. That is one instance, but I think it is a signal instance. I urge you not to underestimate the degree of fear, even among senior academics.
Trevor Phillips: Yes, I agree with Professor Biggar. It is pretty difficult—like proving a negative. People who are too frightened to express their opinions will not tell you that they are too frightened to express their opinions. However, we do know that there are many examples.
Personally, I am a bit less concerned about the issue of meetings not being held and so on, and far more concerned about the extent to which academic and intellectual inquiry is being curbed by a culture that says “This thing will be controversial and too much hassle. I’m going to put my effort into something that nobody’s going to argue very much about.” That, I think, is a real, huge danger for the higher education sector in this country. We have lost what the Americans would call the “speak up culture”—the pleasure in disputation and the belief that testing arguments will always improve the state of knowledge. If there is a job for the regulator, it is to restore the confidence of all the members of university communities that it is okay to take a view; that, essentially, it is okay to say things that you know might offend other people, if you believe them to be correct. I do not think we want to encourage gratuitous insult or unnecessary offence, but above all, our institutions are there to encourage intellectual inquiry.
One practical step that might be embodied in the guidance, if not in the legislation itself, is that the default position in universities when it comes to meetings in particular is that they should always be open to all members of that community, so that every point of view is open to challenge. That is at the heart of this: there should be a culture of challenge. Secondly, what we have tried to do at Index is to help students to learn the habits of resilience that allow them to participate in those robust debates.
Q How big an issue do you think self-censorship is among the student body, as opposed to the academic body?
Professor Biggar: Common sense would say that if grown-up academics are scared, then much more vulnerable students will be even more scared. I mentioned anecdotes. You may know that I got myself into trouble four years ago about my project on colonialism in Oxford, as a consequence of which the Oxford Centre for Global History mounted an official boycott of my project. I then had an approach from a junior research fellow—not a student, but a very junior, insecure academic, without a full-time career ahead of him—who said he agreed with my views and he would like to attend my conference, in May 2018, but would do so with two conditions. Those were that his name appeared nowhere and his photograph appeared nowhere, because he shared an office with two people who had signed one of the three online denunciations of my project. He worried about the future of this career and that he would be punished if they knew that he was associating with me.
That is one instance, but there are others. If that is the case with a junior academic, who is less vulnerable than a graduate student or an undergraduate but still very vulnerable, you can be sure that there are students who are biting their tongues lest they get marked down by their professor. Observe how some professors behave in public in terms of abusing those who disagree with them. If I were a student of some of those professors, I would be very careful. If they can behave that way to other academics, you can be sure that they can behave that way to those beneath them.
Trevor Phillips: Very briefly, most members of the Committee will not know this, but many moons ago— 40 years-plus—I was president of the National Union of Students. On the executive that I led, there was a broad range of opinion, including Conservatives, Liberal Democrats and people who were, believe it or not, way to the left of me. Never a day went by without some ideological dispute or argument breaking out in public. One of the things that strikes me very forcibly is that when I go to campuses and when I read about student politics, there does not seem to be that range of opinion and argument going on on campuses and in student politics. It is not my business any more, but I find that disappointing. I can only read it as the sense, not so much that people are intimidated, but that they just do not think it is worth having the argument. That is very disappointing, because that is where some of our cleverest and smartest people, some of whom are sitting in this room, and some of whom share the Benches on both sides of the Commons, have come from—from that culture of disputation and argument, with a lot of robustness, but a level of respect. That does not seem quite to be the case today.
Q I would like to return the focus to what is written in the Bill, rather than to re-argue the Second Reading arguments on the merits of whether we should have a Bill or not. Professor Nigel, you wrote in the evidence you gave us, that as the Bill is written,
“it fails to protect expressly the freedom of students and academics to voice critical opinions about their own universities”.
You highlight the concern around the narrowing of academics to their field of expertise. Could you expand on why, as the Bill is written, what we could have is a narrowing of that freedom of academic speech?
Professor Biggar: Yes. That qualification—within their field of expertise—is a hostage to fortune and could have the reverse effect of what is intended. For example, if my academic freedom were confined to my expertise, strictly understood, I am a theologian, so if I wanted to protest about policies of decolonising curricula being rolled out in a rather authoritarian fashion by my university, it could be said that as a theologian, I have no standing—what do I know about colonialism? It is not my field; I am not a historian—or if I wanted to criticise some aspect of the general policy of my university, it is not within my expertise. It seems to me that that phrase needs to be removed, so that academics are free to make their views known on any matter that bears on their institution.
Q Further to that—I highlight this for Government Members, because they seem to be a little confused about who is covered by the Bill, so I refer to the Taylor Vinters submission from James Murray; it might be worth your reading it. That evidence says that
“one would not want the situation where the free speech of a large group of vociferous protestors is weighed as having more importance than the freedom of an academic”.
It talks about how the Bill is written, giving primacy to freedom of speech over academic freedom. I wondered if you had any concerns about that, or any points about that: how, as the Bill is currently written, we could see a limitation of that academic freedom because of the primacy of the freedom of speech.
Professor Biggar: I cannot help you much with that in detail, except that I think academic freedom needs to have equal standing, because free speech and academic freedom are not the same things. Did you understand that?
Q Yes. Just to quote from the submission,
“it is arguable that freedom of speech would take primacy over academic freedom when the duty is balanced in practice (i.e. you can read the duty as follows: take particular regard to the importance of freedom of speech when taking reasonably practicable steps to achieve the objective of securing academic freedom).”
Would you be recommending, therefore, that the Bill as it is written is addressed to deal with this imbalance?
Professor Biggar: Yes, I would.
Q Thank you. Trevor Phillips, you have referred a number of times to something being “within the law”. In the evidence given by the University of Cambridge—can I say that when we have an Oxford professor sat here with us?—they mention that the Secretary of State for Education said on Second Reading that
“the right to lawful free speech will remain balanced by the important safeguards against harassment, abuse and threats of violence as set out in the Equality Act 2010, the Prevent duty and other legislation, none of which we are changing.”—[Official Report, 12 July 2021; Vol. 699, c. 49.]
The University of Cambridge is recommending that that statement, or words similar to it, are included—that clarification is included—on the face of the Bill, and that a steer is provided on how the different duties are to be balanced in practice. Would you support something like that going into the Bill?
Trevor Phillips: No. This is premised on the idea that there is a quantum of freedom of speech that can be shared out between different parties. I fundamentally disagree with that: I think that freedom of expression, rather like love, is infinite, and that you do not balance one lot of freedom of expression against another lot of freedom of expression.
Q Just to clarify, I was quoting the Secretary of State, who said that
“the right to lawful free speech will remain balanced by the important safeguards”.
Are you disagreeing with the Secretary of State that we should have this?
Trevor Phillips: I have not read the speech by the Secretary of State, but if he put it in the way you have just put it, yes, I am.
Professor Biggar: Could I respond to that briefly? Certainly, there will be a balance, but the crucial question is, “What kind of balance?” It seems to me that that needs to be a matter for negotiation between the Office for Students, via its director, and universities, because this law will change the legal environment. There needs to be a shift in the dialogue.
Q On that point, would you want to put some kind of balance, or evidence about the balance, within the Bill itself as written, as also recommended by the Free Speech Union?
Professor Biggar: I am not sure what that would achieve. I would not object to it, but it does not tell you what the balance is going to be, which is the really important question. A statutory requirement of balance would not do any harm.
Fiona Bruce is next.
Q Thank you very much, Sir Christopher. It might be very helpful if we could continue this discussion, because I wanted to draw out from you, Professor Biggar, two points where you say that the Bill could be improved. Could you perhaps give us a little more information about your thoughts on this comment:
“In its current form, the Bill would still allow discussion in an academic context to attract allegations of having the effect of harassment under section 26 of the Equality Act 2010.”
Could you elaborate on your thoughts, please?
Professor Biggar: First, the Bill is not proposing to amend the Equality Act. That is quite clear; however, there is tension between the requirements of the Equality Act and the duties to secure and promote free speech and academic freedom that the Bill would establish. The tension arises around the definition of harassment. It is quite right that those with protected characteristics should be protected from harassment. The problem is that harassment is often interpreted by universities—not so much by courts—in such a fashion that dissent from, disagreement with and criticism of becomes harassment. That is obviously a dampener on free speech. The Bill will not resolve that, but I am sure that the OfS, through the director for freedom of speech, will have to discuss with the university how the Act is interpreted in the light of this legislation. The effect of this legislation would be to underscore the free speech and academic freedom elements, and might result in a more conservative interpretation of the Equality Act.
Q I wonder whether you could consider whether the words “within the law” at the very start of the Bill, which is such an important clause, could perhaps be replaced by the words “without unlawful interference”. Would that help to address the problem of the, very often, broad interpretation of harassment, which effectively appears to bring speech that is within the law outside it?
Professor Biggar: That is a very fine distinction, the significance of which escapes me for the moment.
Q The problem that you are raising is that there is quite a broad range of statements that could be not protected by the Bill because they are considered harassing. That is an issue that perhaps needs to be looked at.
Professor Biggar: If that is a tighter definition, then yes.
Q Thank you. The second point that I want to draw out is that you say that the Bill does not give academic staff access to affordable justice via an employment tribunal in the case of failure to be appointed. Do you think that the legal remedies proposed in the Bill are sufficient? Perhaps you could again talk about where the right to go to an employment tribunal might help in certain situations.
Professor Biggar: As I understand it, at the moment the Bill allows civil proceedings, but appeal to the courts is expensive and risky. It seems to me that academics who have lost their job ought to have readier access to lodge a complaint than through the courts. I am not a lawyer, but that seems to me to be the case.
Q Very briefly, in your experience, you believe that there is a real issue to be addressed in terms of freedom of speech and loss of employment or tenure.
Professor Biggar: Yes. The case of Noah Carl, as I mentioned earlier, is an egregious case. I cannot talk about the details of the case, but from what I have read a request has been made about it, and he did not have ready recourse to remedy.
Q David Simmonds registered an interest as an honorary fellow of Birkbeck—so am I. I did not realise that it was a registered interest, or that anyone would be interested, but anyway. Trevor, this is for you really. You have raised the issue of Chinese students, which I think is important. I want to explore it. One of the issues around legislation is ensuring that you do not build into it contradictions that will come back at a later stage and cause problems. I am a campaigner for exposing what is happening to the Uyghur people, which some are describing as a genocide.
My concern is this: I think you are right about the influence on Chinese students at the moment. The National Union of Students has a list of organisations that reflects Government views about terrorist organisations, and so on, that you would not wish to use any form of premises to promote their ideas. For example, in the Uyghur case, if the students through the National Union of Students or their local student body consult or even ballot and come to a view that they do not wish organisations associated with the Chinese Communist party to use their premises to promote or defend what is happening to the Uyghur people, which many now believe to be genocidal, surely there must be a mechanism in the Bill to enable that expression of view to have effect. Those sorts of meetings could intimidate Chinese students on university campuses and elsewhere.
Could the Bill could be improved by having some form of mechanism to enable that element of flexibility? The Office for Students—the director for freedom of speech—could ensure that there is a proper and effectively exercised mechanism to ensure that such consultation takes place. Therefore, we could have a range of limited exemptions where we do not wish in any way to use resources—whether student union or university resources—to enable the promotion of something that might be speculative to some, but is certainly not to some of us, which is the genocidal attack on the Uyghur people. I put the question to Trevor, as he raised it—it is a real-world issue for many of us.
Trevor Phillips: It is a really important point. I have an immense amount of sympathy with what you have just said. Were I a student today, I would without any question whatever be campaigning to have a student union decision that any facilities under the control of or paid for by—although I know they do not have union subs any more—my student union were not used in any way, however indirectly, to support the actions of the Chinese Communist party in Xinjiang. In so far as that is concerned, I am completely with you. I do not think that you need legislation for that. Every student union has a general meeting or a council that can decide that that is what it wants—
Q Trevor, my point is about the contradiction in this legislation. We could have legislation that forces the student union to give a platform to the Chinese Communist party to advocate the genocide of the Uyghurs.
Trevor Phillips: I do not think that there is anything in the legislation that will force a student union to do that. What I would agree with is that it is entirely possible that a group of three students might decide that they want to do something like this on campus. I get that. I am afraid that I have to say that if that is what happens, that is what happens. The student union can say, “Well, you can’t do it on our premises”—I think that is fine.
Q It cannot under this legislation. Under this legislation, that would be challengeable.
Trevor Phillips: I do not think that the legislation will compel any part of a university to agree to let anybody speak on its premises. I do not think that that is the case here.
Q But it is open to challenge.
Trevor Phillips: I am not going to dodge your question, John. I am quite straightforward about this. The student union can say, “No, we’re not having it”, but, ultimately, if a group of individuals—academics and so on—say, “We want to have this person from the Chinese embassy speaking to explain what they are doing in Xinjiang”, I cannot in all conscience agree that it is a university’s duty somehow to prevent that happening. What I will say, coming back to my earlier point, is that, unless there was some compelling reason otherwise, such a meeting should always be open to all members of the university community so that that point of view is under challenge. In the end, that will be a more valuable pathway than simply saying, “We’re going to ban you.”
Q My question is to Mr Phillips, and is particularly around some of what we discussed about the porter you mentioned. Fundamentally, this is a very thin Bill. As Professor Biggar mentioned, there are clear implications for its interaction with other existing legislation, not least the Equality Act. Where it talks about being within the limits of lawful free speech, that does not extend the existing rights particularly. We have heard about all sorts of potential unintended negative consequences, but do you believe that the Bill, as it is written as a thin piece of legislation, is actually just about moral panic about the Equality Act and young people being too woke for the Government, as opposed to a genuine issue that needs tackling in this way?
Trevor Phillips: Point one is that I do not think one ought to value legislation by the weight of pages. I was partly responsible for the Equality Act and, before that, the Greater London Authority Act, which are two gigantic pieces of legislation. I would not say that either carried the same weight as some rather slimmer pieces of legislation.
Secondly, I think your point is, why are we bothering? The answer is that, to go back to what I said earlier, if we could depend on the university authorities to do their jobs to protect the rights of their staff and students, I would say that, on balance, you guys have better things to do. However, it has been demonstrated again and again in the last four or five years that, by and large, university authorities are abdicating that responsibility. To give you an example, Cambridge has been mentioned several times. A couple of years ago, I appeared on television. I will not bore you with what it was, but afterwards, a member of the Cambridge faculty tweeted that I was a racist. I wrote to the pro-vice-chancellor, who is responsible for discipline, and said, “Is it okay for people from Cambridge to say this kind of thing about people they do not know and have never met, and to put it all over social media?” In summary, the response I got was that the university could not really do anything to control or deal with such behaviour. I said to them that I have a relative who is a senior person in one of the Cambridge colleges; Cambridge University said that if someone were to call her a rude name in Trumpington Street in Cambridge, they could do something about that because she is a member of the university, but if they were to call my wife, who is a Cambridge graduate but not a member of the community, the same filthy word, they could not do anything about that.
My point is very simple: if the university authorities were doing their job, you would not be having this session. But they are not, and the truth is that people are losing their jobs. I come back to my point—I am sorry to reiterate it— that the spirit of intellectual inquiry, which is what makes our higher education sector attractive and successful, is essentially being trashed. That has to be stopped.
Q To go back to your point about a Cambridge academic accusing you of being a racist on Twitter and universities not doing their job, a lot of the evidence we have heard seems to suggest that universities should have some sort of control over what random people on the internet say. Professor Stock mentioned the idea that she was not being sufficiently promoted, in her view, by the university. This legislation does not actually do that.
I am going to interrupt because we are running out of time—we have half a minute. I am going to ask Professor Biggar to say something.
Professor Biggar: Just in response to your claim that the Bill really does not make much difference: at the moment, there is no unequivocal duty on universities to secure and promote the academic freedom of their staff. The Higher Education Research Act 2017 does impose a duty to secure academic freedom, but imposes it on the Office of Students vis-à-vis universities, whereas it is about institutional autonomy. At the moment, there is no unequivocal duty on universities to secure and promote the academic freedom of staff, and that would be one single improvement over the current situation that the Bill would achieve.
The time is 25 past and we have to close this session. Once again, it has been a really good session and we are indebted to our witnesses. I am grateful to Mr Phillips for reminding me of my student politics days, when back in 1969 I had the lead letter in The Daily Telegraph, headed “Free speech in universities”, when I criticised our university vice-chancellor for trying to prevent me from inviting a particularly prominent Conservative politician to the university. It has brought all that back to me vividly. Thank you very much.
The Chair adjourned the Committee without Question put (Standing Order No. 88).
Adjourned till this day at Two o’clock.