Higher Education (Freedom of Speech) Bill (Sixth sitting)

John McDonnell Excerpts

Wednesday 15th September 2021 Public Bill Committees

[John McDonnell (Hayes and Harlington) (Lab)]

I really do think that the hon. Member for Congleton has a point. The issue is how we define that point. I hope that it applies retrospectively as well, because I would not mind challenging some of my essay marks from about 50 years ago.

The point is that the only way that a large number of students can finance their PhD research is by doing separate tutoring at the university, and therefore they have an academic status. Somehow we must find a form of wording for this Bill that protects them. At the moment, it is too loose. Colleagues have tabled other amendments—actually, I have tabled amendment 45, which focuses on innovative research. I am fearful that someone who, like me, is a pain could challenge their mark for a particular essay purely and simply because they disagree with what is being taught, even if they are wrong.

One of the biggest contentious issues at the moment is climate change. There are rows going on while academics are trying to identify a whole range of the causes of climate change as well as some solutions to it, and it is incredibly contentious. Lecturers and professors do have a responsibility to point out where they think something is wrong or ludicrous, and mark it down on that basis.

[Sir John Hayes]

The right hon. Gentleman makes an extremely important point. It is easy to mistakenly see this through the prism of political ideas. However, it is actually not just about political ideas, but about all kinds of challenges to orthodoxy. Some of those challenges will be scientific, some will be technological and some will be about philosophical principles, which are not to do with the politics we enjoy here. The right hon. Gentleman is right: innovation is a much bigger subject than political debate.

[John McDonnell]

There are even elements in science itself where there are really contentious issues and we know that some scientific theories are being brought forward for political motives—we have seen that around race in the past, about genetics linked to racial groups and so on—but an academic would throw the whole essay out on that basis. There are some really contentious issues here.

The hon. Member for Congleton is right to point out the issue of non-inclusion of students, but we must find a definition that enables us to ensure that there is a level of academic expertise at which the student should be operating, which qualifies that person to have academic freedom and the right to free speech. I think that is very difficult.

To come on to the point made by my hon. Friend the Member for Brighton, Kemptown, in academia, people are now extremely litigious. They will challenge individual gradings or the award of the degree classification. What we often find now—ask any university—is that a large amount of money and time is being spent on defending the awarding of degrees due to this sense of being a consumer, of buying a product. It is as though they are challenging the quality of the degree awarded as though it were a washing machine. There is a real issue here.

[Lloyd Russell-Moyle]

My right hon. Friend makes some good points about the litigiousness, but also about the ability that people have to challenge the status quo to create knowledge. That is when they then take part in research, and that is when they then take part in the production of knowledge.

For undergraduates, however, and even sometimes in taught masters programmes, particularly for professional qualifications, it is about instruction. Very often, in that purpose of instruction, students should be able to make an argument that is not their own. Their teachers want to say to them, “If you just make your own argument, I am going to mark you down.” We talked in the evidence sessions about debating societies. Teachers want to say to their students, “If you produce an essay which is your own argument, that is not going to be highly regarded. I want you to produce something you might vehemently disagree with, but that is the point of this exercise.”

There is a danger that, if students are given personal academic freedom, they will say, “Well, that is not my view. I have got an academic freedom to express what my view is.” The distinction must be between taught and research, and between the creation of knowledge and instruction. The flipside is a researcher or university member of staff enrolling in a course for academic interest, and then taking on a different role as a student and being instructed. The freedom does not stay with the person; the freedom is the role that the person is undertaking at that moment.

[John McDonnell]

Right, I am waiting for the Minister to say that this will be covered in guidance. On this occasion, I might well support her, because it is complicated. It is a combination of the level of the degree and the content and status of the research. In some instances, there will be very specific examples and we will see it playing out in individual cases and challenges setting a precedent. If we are not careful, I can see the vista being lawyers making a huge amount of money at the expense of universities.

The hon. Member for Congleton has raised a genuine issue and we should address it with subtlety, recognising that it could open the doors to a whole range of activities that would burden universities and confuse the individual academics and students themselves. I look forward to the guidance.

[The Minister for Universities (Michelle Donelan)]

It is a pleasure to work with you today, Mrs Cummins. These amendments seek to extend academic freedom protections to students as well as academic staff. Where clause 1 provides that higher education providers must take reasonably practical steps to secure freedom of speech for staff and members, as well as students and visiting speakers, this includes securing the academic freedom of academic staff. Academic staff have studied and researched for many years to reach the positions they hold. It is wrong for them to fear for their jobs or career because they have taken a minority view or put forward a controversial opinion.

I am pleased to reassure Committee members that the Bill goes further than previous legislation, broadening the definition of academic freedom so that it will include promotion and new applicants for academic positions. Indeed, it goes even further, in that all academic staff, not just employees, will have the benefit of academic freedom. That means that the Bill covers those who hold honorary positions, whether they are paid or not, as well as PhD students who teach undergraduates.

I must be clear that the additional protections afforded by academic freedom are relevant only to the academic staff of a provider. That is because the provision is about the risk of losing one’s job or the possibility of promotion, which are not issues that apply to students.

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[Sir John Hayes]

To whom should I give way first? I am terribly old fashioned, so I shall give way to the hon. Lady.

[John McDonnell]

Don’t fall for it!

[Emma Hardy]

As a former teacher who had the statutory national curriculum and regular reviews from Ofsted on the best way to teach x, y and z, there is part of me that reads the right hon. Gentleman’s proposed paragraph (c) and thinks, “Wonderful! Yes, the passion and the ability to teach in the way you want on the subjects you want”. However, as has been alluded to—and this is where we get to the detail of it—there are subjects at university that require things to be taught in a particular way to get through a certain amount of basic knowledge components on that course. It might be suitable for some courses, such as government and politics, where there can be greater freedom, but studying medicine, for example, might need to be more instructive. Therefore, much as in my heart I am with him, in my head I find that, as it stands, it is not quite the right sentiment.

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[Fiona Bruce]

The objective of the Bill is to secure freedom of speech within the law. We are saying that, provided that someone speaks within the law—whether about their field of expertise or not—they should be covered by the Bill. They should have the freedom, as academics, to express views and not be penalised if those are unpopular, unfashionable or not mainstream. I hope the Minister will look at amendment 27 very seriously, above all those I have put down, and consider it in a positive light as the Bill progresses.

Amendment 28 is self-explanatory, setting out a number of factors that need to be covered and clarified in the definition of academic freedom. Not the least of those is the importance of academics being able to set the reading matter for subjects that they are teaching. I will set the amendment in context, underneath amendment 27.

A deeply concerning trend has emerged in our universities that has seen academics lose their jobs, students suspended from courses and refused affiliation with their unions, and visiting speakers refused a platform, due only to their expression of non-mainstream viewpoints. Some are not, in fact, non-mainstream. In his evidence, Matthew Goodwin, a professor of politics and international relations, told us he was an outlier when speaking of Brexit, with only 10% of academics sharing his support of it. However, Brexit was actually voted for by over 50% of those who voted in the referendum across our country.

We also heard of instances of academics being subject to vilification or discrimination for exercising their right to academic freedom and freedom of speech within the law. Although we did not hear of these instances in evidence, I will give two examples. In 2019, I raised in this House the well-publicised and worrying experience of respected academic John Finnis, an emeritus professor of law and legal philosophy who had taught at the University of Oxford for some 40 years at that point, yet students were calling for him to be removed from office simply for holding traditional Catholic views. Much more recently in the press, we had the case of David Palmer, a Catholic who was denied recognition by Nottingham University for the post of chaplain due to comments he made on social media expressing no more than the Church’s traditional views on euthanasia and abortion.

Professor Goodwin told us:

“This is how it typically works: a group of students will make a complaint about an academic. They may take that academic’s words out of context. They may imply that something was said that may not have been said—who knows? That academic is typically investigated and, as we saw in the case at Edinburgh recently, they are suspended and asked to leave campus for six weeks or so while the case is investigated. There is a reason why academics say that the punishment is the process. The reputation of that academic is now in tatters. Nobody will hire that academic. His or her chances of getting a research grant are probably minimal, and those of getting published have been severely damaged. That individual is tainted.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 97, Q197.]

Given that Professor Kaufmann told us how there can be over 100 applicants for any post in academia, that is a serious disadvantage that can be experienced and suffered. We were also told by more than one witness that self-censorship by academics is the most pervasive impact of all—the so-called “chilling effect”.

We heard about that from several witnesses during the course of evidence. The case of Dr Ahmed is particularly instructive. We heard how he struggled to get just 25 signatures of people willing to put their name publicly to a motion on whether to change the wording of a university’s policy. That goes directly to the reason why we need amendment 28. Once it was put to a vote by secret ballot, it passed by 80%. Some witnesses spoke of staff and students refraining from saying things they considered to be important or not pursuing lines of research they thought would be fruitful, because they feared adverse consequences, such as disciplinary action or another form of marginalisation or vilification.

Amendment 28 seeks to augment and clarify that academic freedom should include the freedom to express opinions about a university, including its curricula, governance, affiliations, teaching and research, without the risk of being adversely affected. Amendment 60 seeks to ensure that students do not suffer any impact on their educational process, such as being marked down. We have already had a good debate on amendment 59, with which amendment 60 is linked, so I will leave that with no further comment, save the hope that the Minister will reflect on amendment 60 with amendment 59.

[John McDonnell]

I want to repeat my declaration of interest as an honorary fellow of Birkbeck, University of London, which is the same as the hon. Member for Ruislip, Northwood and Pinner. I failed to declare that my wife is an educational psychologist and is now a part-time tutor at the Institute of Education at University College London. I just want to make sure that our register of interests is full. I cannot think of any other family who are involved, but at least I will get that on the record.

Before considering the amendments, I want to reflect on the fact that we have come a long way since section 28 in the 1980s. We are no longer tolerating any Government interference in matters—for example, at that stage, in just talking in an educational setting about LGBT rights. It is interesting and gratifying that we have come this far.

On amendment 80, I want to warn the Minister. The right hon. Member for South Holland and The Deepings has a propensity to get people into trouble. On one occasion some years ago, the Speaker called for a question in the House and shouted out “Hayes, the Whip”, but nobody was there and I got the blame for it, even though it was John Hayes, not the Member for Hayes and Harlington, so I caution the Minister. Ever since Pepper v. Hart, material in the House can be taken into account in legal actions, and the right hon. Gentleman is enticing the Minister into expressions around his amendment. I actually have some time for his amendment. All we are trying to do today is get a formulation—maybe by Report stage and certainly by the time the Bill gets to the Lords, which is packed full of legal experts—with more than even the Commons—who might well be able to assist us. I can understand exactly where he is coming from in wanting to maximise that freedom of expression of freedom of academic activity.

I want also to consolidate the alliance I now have with the hon. Member for Congleton. It is interesting that a number of witnesses raised the point that this form of words does not work—we have to find some other formulation. I have worked with a whole range of economists in recent years who have commented on a whole range of matters unrelated strictly to economic matters—for example, wellbeing, health, social care. Areas of interest evolve over time. They cannot be defined just by the job description of that academic. We are digging ourselves into a hole by leaving this in the Bill. To the hon. Member for Congleton, I say: screw your courage to the sticking place, because if we had a vote on that today, we would most probably win it. I would be careful about the assurances that she may get from the Minister, which might not completely eradicate that form of words from the Bill.

[Charlotte Nichols]

The Minister may find herself promoted and able to follow through on the assurance she has given today, so perhaps the vote is the right way to make sure that we sort that out.

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[John McDonnell]

Given the way that heads are toppling at the moment, anything could happen. The guillotine is out there, certainly.

I now come to amendments 45, 46 and 48 in the name of my hon. Friend the Member for Warwick and Leamington, to which I also put my name. I want to be completely honest about this: those amendments have come from discussions that we have had with individual academics and trade unions. Those matters also came up in the evidence sessions. One issue that came up time and again is employment protection for academics. Their biggest anxiety is not just their ability to exercise freedom of speech and academic freedom but retaining their jobs, having access to appropriate promotion and so on.

The three amendments seek to provide that enhanced protection. My hon. Friend the Member for Warwick and Leamington has covered amendment 45. It seeks to make it absolutely clear on the face of the Bill that the provision pertains to innovative research as well. That was one of the issues that came from the evidence sessions: the biggest feeling of insecurity is among people who are doing leading-edge research that challenges existing establishment views and that, maybe for some, goes over the edge of acceptability. However, it is often the case—and I cite section 28 here—that those sorts of statements, activities and expressions of view become accepted wisdom within a period of time. All those equalities things that I can remember being condemned for personally in the Evening Standard throughout the 1980s are now accepted as Government policy and by all political parties. Putting “innovative research” in the Bill would close a door and clarify the situation.

Amendment 46 seeks to re-emphasise the ability of academics to freely pursue their teaching and research without—this is where section 28 comes into it —“government or institutional interference”. It is fundamentally important that we say that. We need to learn the lesson of section 28. Given the policies that have been developed on equalities by all our political parties, I think we have learned that lesson, but it is worth legislating to that effect as well. I do not want to be here in another period of moral panic over a particular issue, with a rush to Government activity that seeks to influence institutions in a way that means people suffer as a result, and in subsequent years people realise their mistake, by which time, unfortunately, too many people have been harmed.

The reference to “government or institutional interference” is quite significant. I say “institutional interference” because these days a large amount of policy development, and even policy making, is undertaken by agencies other than Government, agencies established by Government or institutions that have been funded and established to perform a role on behalf of Government.

The other issue—the prickly one, really—is the right of an employee or academic to criticise the institution that they work within. That is quite fundamental. The Minister might argue that the protections are there already in employment law and so on, but the message we were getting from the evidence sessions is that they are not. The way in which people are victimised by their institutions—“providers”, as we call them—or their employers can be quite subtle, and quite undermining in a way that might not stack up if they go to an employment tribunal, so it is worth putting on the face of the Bill that a person can challenge the institution that employs them and have that protection.

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[Michelle Donelan]

I and the Government commit to taking the topic away, listening to Members from across the Committee today and their very valid points and concerns on the topic, and to look at the topic again.

On the rationale behind the topic, the Government intend the definition to be interpreted broadly, so that a maths professor who uses their mathematical or statistical skills to analyse a non-mathematical subject would be covered, for example—that references the point made by the hon. Member for Brighton, Kemptown. It would also cover situations where an academic discusses teaching generally or the governance of their department—all that is within their area of work and subject expertise.

The wording reflects Strasbourg case law, where it has been held that academic freedom is not restricted to academic or scientific research, but also extends to an academic’s freedom to freely express their opinions in the area of their research, professional expertise and competence. Our courts must take this judgment into account when considering the question of what academic freedom is.

Further on amendment 28, I will move on to the inclusion of the wording that seeks to clarify that academics should enjoy academic freedom without “unlawful interference”. That is unnecessary, because any such interference with academic freedom will by definition be unlawful, which does not need to be stated in the Bill.

Finally, amendment 28 adds “without being adversely affected” to the definition. Being placed “at risk” of adverse effect is already covered by the Bill. It would be sufficient for an academic to show that they were at risk of adverse effect. It would not be necessary to go further and show that there had actually been adverse effect. Even a threat to damage an academic’s career, for example, could be sufficient. Therefore that aspect of the amendment is not required, as the current drafting is actually wider.

Amendments 27, 57 and 58 all seek to broaden the definition by removing the requirement for speech to fall within an academic’s field of expertise—once again, we shall cover this topic. Clause 1 provides that higher education providers must take reasonably practicable steps to secure freedom of speech for their staff and members. This includes securing the academic freedom of academic staff. As I have already said, this means that academic staff will have particular extra protection, in addition to the more general protection that the Bill offers for freedom of speech. This will allow academics to bring complaints to the Office for Students or a tort claim before the courts, which will reflect the high level of importance that the courts have consistently placed on academic freedom. I have outlined our rationale behind the “field of expertise” requirement and that it should be interpreted broadly, but as I have already stated to the Committee, I will take away and consider the issues raised regarding this topic.

[John McDonnell]

I hate to raise this subject, but it was suggested that someone in any field of academic expertise would somehow be denied the ability to talk about or comment on Brexit. Can we just clarify that?

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Equally, as regards amendment 48, proposed new section A1(7)(b) to the Higher Education and Research Act 2017 already sets out a new provision that academic freedom covers not only the risk of losing one’s job or privileges—as is currently the case under that Act— but the risk of not securing promotion or another job within one’s university. Again, academic freedom is not enough if it only prevents a person from losing their job, and does not allow them to progress their career.

[John McDonnell]

I apologise to the Minister for interfering again. I want to be absolutely clear about these amendments, though, because at the moment, I am not. She has dealt with amendment 45; could she make it absolutely clear that, even if she will not accept the amendment to include “innovative research” on the face of the Bill, the Bill does encompass protections for innovative research?

With regard to amendment 46, the Minister has made no reference to the protections against Government interference in academic work. Again, it would be helpful to get assurance about that, and if we cannot get that assurance I would urge my hon. Friends to press amendment 49 to a vote, which is about protections enabling members of staff, academics and others to criticise their own institution.

[Michelle Donelan]

Academic freedom would indeed cover academics’ own research; the research of students would be covered by the broader freedom of speech. If it were the Government interfering with an academic’s freedom of teaching or research, that would be covered in just the same way as if it were the institution interfering. I hope that reassures the right hon. Member.

I understand the concerns that have been raised today, and I assure Members that it is not our intention to unnecessarily limit the right of academic freedom. I therefore will, as I have already stated, commit to exploring this issue, particularly as regards the field of expertise.

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[Sir John Hayes]

I draw the attention of the Committee and others to my entry in the Register of Members’ Interests, which cites my professional connection to the University of Bolton, where I am a professor.

[John McDonnell]

I register my interest as an honorary fellow of Birkbeck College, and my wife is a tutor at University College London.