Higher Education (Freedom of Speech) Bill (Eighth sitting)
Matt Western Excerpts(2 years, 7 months ago)
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Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
My partner works at the University of Hull on the degree apprenticeship programme.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
I am an honorary fellow at Birkbeck.
Michelle Donelan
Government amendments 1 to 26 and new clause 1 concern the position of certain colleges of universities such as the Universities of Oxford, Cambridge and Durham. The amendments will ensure that, in these collegiate universities, colleges are subject to the new strengthened freedom of speech and academic freedom duties in the same way as the registered higher education providers themselves. The amendments will restore a legislative position similar to the one in place before August 2019, when constituent colleges of collegiate universities in England were directly responsible for meeting the duties set out in section 43 of the Education (No. 2) Act 1986 to take reasonably practicable steps to ensure freedom of speech for their students, speakers, members and visiting speakers.
The Bill sets out new and strengthened duties; in particular, it introduces direct routes for individuals to seek redress when they believe they have suffered loss as a result of a breach of the duties, so it is vital that action can be taken directly against the body that is responsible, including when that is a college. As the types of college in scope of the amendments may enjoy a large degree of legal independence from their parent provider, it is possible that, without these amendments, a registered provider could demonstrate that they have met their duty in new section A1 of the Higher Education and Research Act 2017 to take steps that are reasonably practicable for it to take to secure freedom of speech, but a college could still act in such a way as to restrict someone’s lawful freedom of speech.
My officials have held discussions with some of the main institutions that will be affected by the amendments, in particular the Universities of Cambridge and of Durham, and they have indicated that they would welcome the amendments. They do not think that they will result in a burdensome change in practice for their colleges, since in general their colleges have continued to maintain the codes of practice relating to the freedom of speech duties that they were subject to until 2019.
The wording used for the definition of “constituent institution” in new clause 1, in proposed new section A3A(4) of the 2017 Act, reflects the wording that applies to those bodies subject to the Prevent duty and the coverage of the complaints scheme operated by the Office of the Independent Adjudicator for Higher Education. A college that is required to comply with the Prevent duty will, therefore, also be subject to the freedom of speech duties, which is clearly sensible, and the coverage of the higher education complaints schemes will be consistent.
In addition, amendment 3 makes it clear that student unions at approved fee cap providers that are subject to the new duties in clause 2 do not include student unions at colleges. Colleges fund their junior and middle common rooms and, to that extent, can exert a lot of control over their activities. Those groups do not own or occupy their own premises or run the booking the systems, so imposing a freedom of speech duty on them seems to be unnecessary and overly bureaucratic. We do not believe that including them in the provision is necessary, as the freedom of speech duties on the colleges will apply to the activities of their student unions. I hope it is clear that the amendments are necessary for the Bill to work as intended, to ensure that all key bodies in our universities play their part in securing freedom of speech on campus, and to ensure that where they do not, those who suffer detriment can seek redress from whomever is responsible, whether that is a university or one of its colleges or student unions.
Matt Western
It is a pleasure to see you back in the Chair, Mrs Cummins. Overall, I have to say that I am really delighted—I think all the Opposition Members are—that the Minister has listened intently to what we have been calling for in our speeches on Second Reading, in Committee and during the witness sessions. We have been calling for clarity. It was clear that the Higher Education and Research Act 2017 made a similar mistake by omitting the likes of Oxbridge colleges and constituent institutions.
John McDonnell (Hayes and Harlington) (Lab)
I am sorry to be sarky, but this is therefore the second time in major legislation that the Department for Education has discovered that it does not understand the structure of higher education in this country. Does my hon. Friend find that a bit worrying?
Matt Western
The lack of corporate knowledge or rock of collective experience that legislation should be based on is really surprising. I would have thought that such errors would be corrected and noted, and always and forever be related to anything in the higher education realm. I would have also thought that there were many in this place—there may be more of them on the Government Benches—who have been to the likes of Oxbridge or Durham and who would be more familiar with them. I do not mean that lightly; I think it is factually true. Personally, I did not attend them, so I am not so familiar with how those institutions work in terms of their governance. It is a simple point, but the error should not have been repeated.
On Second Reading, the shadow Secretary of State for Education, my hon. Friend the Member for Stretford and Urmston (Kate Green), forcefully made the point that numerous collegiate institutions affiliated to a central university would be outside the scope of the legislation in its current form. It is easy to think about existing Oxbridge-type institutions, but what about future-proofing the higher education sector and the changes that may affect affiliate and collegiate associations between higher education providers? That important point was picked up by Members on both sides of the House, and rightly so. It is good to see the Minister taking the feedback on board, and I hope that we will see some further evidence of that arising from yesterday’s sittings.
I have a small point to raise in relation to amendment 3 and an apparent exemption. The Minister spoke about the MCRs and JCRs at the likes of Oxford, but I do not know why they should be exempt. Any groups associated with a university or a higher education provider, whatever its size or shape, should be covered. If the legislation is honest in its intent, why should any be excluded from it? What justification could there be for preventing a student body at an Oxbridge college from being covered by the Bill?
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Is it not in fact troubling? The JCR system is operational at only a few universities, so a few universities will end up being exempt, or have student bodies that are exempt, while the vast majority will not. There is clear inequity there. Will it not prompt other bodies to be unnecessarily created, or reconfirm the unfair and often undeserved privileged status that some so-called elite universities have in this country?
Matt Western
I thank my hon. Friend for his well made point. It could indeed reinforce those existing privileges, or lead to a complete breakdown of the SU structures and change to institutional structures too, with disaffiliations and so on. We must be careful about the message that that sends out.
John McDonnell
I can understand why some organisations or bodies that associate with universities—the Bullingdon club, or whatever—are excluded, but what is the rationale for the exclusion of JCRs?
Matt Western
I thank my right hon. Friend for posing that question. It is question that I think we Opposition Members would like to hear the Minister give a more explicit answer. It was not clear to me in her remarks, and it seems that it was not clear to my right hon. Friend either. It seems a bizarre exemption that they should not be covered.
Think of the outrage of the former Secretary of State for Education, the right hon. Member for South Staffordshire (Gavin Williamson), when Magdalen College middle common room—not that I am familiar with that establishment or its make-up—did something shocking by taking down a picture of the Queen. Were it the Lucian Freud version, I could perhaps understand it. The MRC members chose to do that, and it was their expression of free speech. Had they done something of greater significance though, it would not come under the remit of the Bill. I hope the Minister will address that important point.
Overall, I am pleased that the Government have been listening and have proposed this change to the legislation, because it is important. However, I ask the Minister to specifically, explicitly address why it is that middle and junior common rooms should be excluded.
Fiona Bruce (Congleton) (Con)
I very much welcome this amendment and addition to the Bill. Perhaps colleagues will permit me a moment of reflection on a personal experience that makes me feel so strongly about this.
In 2016, I was invited to speak at an Oxbridge college. I will not name it, because I think that the situation is somewhat embarrassing for it. I was asked, as chair of the all-party parliamentary pro-life group, to speak to Oxford Students for Life. As I began speaking to around 100 people in a room of a similar size to this one, with large glass windows at the back, an official rushed in and said “This meeting must stop. You are causing offence to students in the social room on the other side of the quad.” The chair of Oxford Students for Life said “But they can’t hear us,” and the official replied, “Well, I have been told that I must stop the meeting.” In the end, we came to a resolution whereby, if all the curtains were closed on those large ceiling-to-floor windows, the students in the social club would allow us to carry on. The whole situation was just ridiculous.
Michelle Donelan
We did indeed listen to the sector and Members after the Bill was first published, and we identified a gap. These technical amendments will close that gap, which could otherwise have meant that some individual colleges would not be in scope. Since the Bill introduces new routes of redress for individuals who believe that their lawful freedom of speech or academic freedom has been improperly restricted, it is vital that the right institutions are held responsible.
To reiterate the points that I made in my opening speech, colleges fund their junior and middle common rooms. To that extent, they can assert a lot of control over their activities. Such groups do not own or occupy their own premises or run the room-booking systems, so imposing the freedom of speech duties on them seems quite unnecessary and overly bureaucratic. The amendments are necessary to ensure that the new duties apply to all appropriate bodies on campus and that the routes of redress in the Bill are available for all who need them.
Matt Western
The Minister is being generous in giving way. Essentially, what the Bill saying is that the colleges can exert pressure on their middle and junior common rooms and somehow influence behaviour and how free speech is permitted and managed within those forums. It is a delegation to the colleges to do that. But what the rest of the Bill is saying is that all other student unions, bodies, clubs and affiliates are responsible to the university and have to comply. Are we saying that there will essentially be a two-tier system for how the legislation will work?
Michelle Donelan
What we are saying is that the junior and middle common rooms are very different from student unions, and we have to ensure that the legislation strikes the right balance—a point made by the hon. Gentleman when we debated the last amendment on bureaucratic burden.
To conclude, colleges have a vital role in the protection of freedom of speech.
Matt Western
I beg to move amendment 44, in clause 1, page 3, line 28, after “education” insert—
“and in the conduct of research”
This amendment would ensure that higher education providers must promote the importance of academic freedom in the conduct of academic research as well as teaching.
This is another example of a small detail that we wish to amend. As we said throughout yesterday’s proceedings, we want to keep to a minimum any damage that the legislation might cause to our institutions, the viability of student unions and, indeed, the entire sector. The amendment equates protecting freedom of speech and academic freedom, not just for teaching, but for the conduct of research as well.
The point that we want to stress and to have reflected in the Bill is that all too often, observers of the higher education sector think purely about education in the form of instruction, as my hon. Friend the Member for Brighton, Kemptown said. Teaching can be instruction, of course, but in the realm of higher education institutions in particular, there is differentiation when it comes to research.
Research is so important; it is the fundamental differentiator in institutions’ success and reputations. The amendment would add the words
“and in the conduct of research”
because research is important not just to society but to the development of our understanding of humanity and more. Dr Ahmed said that academics should be allowed to pursue
“lines of research that they think might be fruitful”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 13, Q22.]
That is why we want to ensure that, as we heard in evidence, research is at the core of the sector. It needs to be included where possible, to remind everyone of just how central it is to the debate.
Emma Hardy
This discussion follows on quite well from debate on amendment 59, tabled by the hon. Member for Congleton, in that it seeks to close a loophole for masters and PhD students. That is what amendment 44 is intended to resolve. Our discussion about academic freedom and freedom of speech applied to those involved in teaching. The amendment nips off that loophole so that the provisions can apply to masters and PhD students.
Matt Western
I thank my hon. Friend for her intervention. In response to a point by the right hon. Member for South Holland and The Deepings about the detransitioning of research at the University of Bath, Professor Whittle said in evidence that
“had Bath addressed it properly, they could have done more to say, ‘This needs sorting and this does before we will consider it.’”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 41, Q75.]
The amendment would incorporate innovative research under the academic freedom duty, and that would push the likes of the University of Bath towards further exploring how such research proposals could be encouraged. It is a very simple amendment, but we hope that, in the spirit of how we have tried to co-operate, the Government will accept it.
Michelle Donelan
This amendment seeks to extend the duty of higher education providers to promote the importance of freedom of speech and academic freedom so that it specifically applies in the conduct of research, as well as in the provision of higher education more generally. The duty set out in proposed new section A3 of the Higher Education and Research Act 2017, created by clause 1 of the Bill, is a new one. It requires a provider to promote the importance of free speech within the law and academic freedom throughout its provision of higher education. This is a general duty that intends to drive a positive tone on campuses across the country, promoting a culture in which everyone on campus can express their lawful views, and in which academics feel safe to question and test received wisdoms and put forward new ideas and controversial or unpopular opinions.
Michelle Donelan
I think that the next part of my comments will address the hon. Member’s concerns. A key element of this duty is to promote academic freedom for academic staff. It is widely understood and set out in international case law that academics should expect that their academic freedom is protected for any research they seek to undertake, as well as in the design and delivery of their teaching and wider comments or writings that they issue. The duty to promote the importance of academic freedom in the provision of higher education will therefore cover research undertaken in that context, noting the high-level nature of the duty. However, I have listened to hon. Members today, and while this will be made clear in the guidance, I shall commit to take this issue away and see whether further clarity would be of assistance.
Matt Western
I have heard what the Minister has to say. I take her at her word and look forward to having further conversations and discussions on this issue. I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 33, in clause 1, page 3, line 28, at end insert—
“(2) For the purposes of this section, ‘freedom of speech’ and ‘academic freedom’ do not extend to any statement that amounts to the denial of genocide.”—(Matt Western.)
This amendment ensures that the objective of securing freedom of speech and academic freedom do not cover those who make statements that amount to a denial of genocide.
Question put, That the amendment be made.
Emma Hardy
Absolutely. I state again, referring to the written evidence of the Free Church Group, that it
“affirms the importance of freedom of speech and academic freedom.”
I would not wish this to be interpreted in any way as the group being against free speech—it is not. It is saying that, for the purposes of the Bill, we need to have a look at the question of premises and whether some premises, or some individual rooms within premises, should be in some cases denied to certain groups, out of respect for what those premises are meant to be used for.
When the Minister replies, I hope that she takes the amendment in the spirit in which it is intended, although it is perhaps not perfectly drafted, as I have explained. However, we need to resolve that problem, because we should be mindful of the fact that people have different beliefs and opinions, and we have to show tolerance and respect at all times. All of us in this debate on free speech have said that we want to encourage a climate in which ideas are challenged, but that they should be challenged in a respectful way.
Matt Western
I thank my hon. Friend for the amendments, the clarity with which she presented them and the debate that they provoked—if I may use “provoked”. When we start to delve into this, it is interesting just how far-reaching the unintended consequences become. As has been examined, that is not just between external groups or about mischievousness between one group and another—whether religious or whatever—but about infiltration of groups, as my right hon. Friend the Member for Hayes and Harlington mentioned. Factions within different societies or groups might have challenges or issues of power, leading to problems on campus. Many will have views that are sacrosanct, for example, on the denial of the holocaust, and we have to respect that some places on campus should also be sacrosanct.
That can be reduced to a simple point: there is a time and a place for vigorous debate, and universities are good places for that, but we have to provide protections. That is what we have been seeking to do throughout, to ensure that individuals have protections and, here, to protect against an anti-religious group who might want to occupy a prayer room, for example. That is a conflict of duties, which would skew the balance too far in favour of freedom of speech, without referencing any of the competing freedoms to which Danny Stone referred in his evidence.
Emma Hardy
Referring again to the written evidence, the Free Churches Group is asking for urgent clarification and redrafting of this clause. It says:
“Whether the clause means no premises can be provided on the basis of beliefs etc is unclear and needs clarifying. If it does, the consequences for prayer rooms, chapels, chaplaincies, kitchens designed with sensitivity to religious beliefs, amongst other facilities, could be dire.”
That is the point that my hon. Friend makes. The problems with the way in which the Bill is drafted mean it is open to vexatious and disrespectful abuse.
Matt Western
I agree. Whether it is, for example, an Islamic or Christian prayer room, or a space for the Jewish Society, we have to be very careful about the implications. I concur with what my hon. Friend just said.
John McDonnell
The word “any” is key. To give one other concrete example, I have a large Muslim community in my constituency and an Ahmadiyya Muslim community. The majority Muslim community do not recognise Ahmadiyyas as Muslims. The word “any” means that we could have a situation where one group is insisting on using a particular room, invited by an individual, which then offends others. There is then a situation of conflict and even litigation.
The word “any” has to come out. It is a provocation for the future, if we are not careful. This is a simple amendment to ensure that we forestall a potential problem in the future.
Matt Western
My right hon. Friend is right: this is yet another example of how things are well managed by students’ unions up and down the country. They see challenges day in, day out, week in, week out. They manage the various, sometimes conflicting, interests of different groups.
My right hon. Friend has given a simple example of an Islamic prayer room and how that can play out between the Ahmadiyya and other Muslim groups. I urge the Minister to take on board our points and make the changes set out in the amendments. The word “any” is problematic and the Government would do well to remove it.
Michelle Donelan
The amendments would narrow the application of the freedom of speech duty in proposed new section A4 on students’ unions so that it only applies, as regards premises, to the “sole” use of those premises and does not apply to the terms of the use of those premises.
Proposed new section A4(1) in clause 2 requires students’ unions to take “reasonably practicable” steps to secure lawful freedom of speech. Proposed new sections A4(3) and A4(4) set out how this duty will work in relation to the use of the premises. The students’ union must take “reasonably practicable” steps so as not to deny the use of their premises because of
“the ideas, beliefs or views”
of an individual body when inviting speakers. That was an excellent point made by my right hon. Friend the Member for South Holland and The Deepings.
A key part of the Bill is the emphasis on “reasonably practicable” steps. On the point that the hon. Member for Brighton, Kemptown made, if a range of rooms was available and some rooms were not suitable, for example because of religious beliefs, it would be “reasonably practicable” not to choose certain rooms. However, I have heard the concerns raised in the debate and the evidence that has been provided, so I will commit to take this important point away.
The Chair
With this it will be convenient to discuss new clause 4—Other student bodies—
“After section A4 of the Higher Education and Research Act 2017 (inserted by section 2) insert—
‘A4A Application of students’ union provisions to other student bodies
(1) In this Part, where a provision applies to a students’ union, it should also be taken to apply to any other student body.
(2) For the purposes of this section “other student body” means—
(a) any Junior Common Room or Middle Common Room of a constituent institution; and
(b) any club or society made up of students at a higher education institution, whether or not the club or society is affiliated to the students’ union.’”
This amendment would expand the definition of a student body to include any Junior Common room or Middle Common room of a constituent institution or any club or society at a higher education institution, regardless of whether student union affiliation requirements have been complied with.
Matt Western
I rise to speak to new clause 4. Our points on the new clause amplify the points that we made not half an hour ago, about the importance of how the Bill is applied to the Higher Education and Research Act 2017 and the need to include the junior and middle common rooms of a constituent institution. As we have said many times, there is a wide diversity of student bodies out there, on all sorts of different campuses and institutions. We have to make sure that the expansion of free speech duties that are being placed on student unions extend to other relevant bodies as well.
The scale of the sector in this country means there is a very complex mix of student bodies, many with very different relationships from those that we may be more familiar with from our personal experiences or from those we work with in our constituencies. My hon. Friend the Member for Brighton, Kemptown raised this issue during the evidence sessions, putting the point that some of the public debate has been about debating societies—the Oxford Union, the Cambridge Union, Durham and so on—and other informal societies. He asked whether we were right in that, because they have no funding relationship with the university and they would not be covered by the legislation. He asked whether that defeated the point.
That question was put to the only lawyer we heard from who is currently working in legal practice, Smita Jamdar at Shakespeare Martineau. Her response was very clear. She said:
“Absolutely. It only applies to universities and student unions as defined, so it would not apply to the Oxford Union or the Cambridge equivalent.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 56, Q107.]
That response comes from a lawyer who is very experienced and knowledgeable in the sector. It exposes an anomaly and a clear difference across the sector. She went on to say:
“As for informal societies, again, you would have to look at exactly what the grouping was and whether it was even an entity you could define in any way, shape or form—it might just be the individuals within it. What might happen in those situations is that the dispute among the group about what they wanted to do would become escalated up to the university and again resource would have to be spent on trying to resolve what was essentially a dispute between a small group of students over a single event.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 56, Q107.]
Smita Jamdar is the only practising lawyer we heard from.
That underlines just how complicated it is going to become, particularly given the different organisations and bodies that may relate to universities and higher education providers but are not necessarily covered by the Bill. That is why the extension to the Higher Education and Research Act 2017 is important. The amendment would have the effect of explicitly including all student bodies in the duties to uphold freedom of speech, but it would have a dual effect. It would prevent student bodies from explicitly deciding to not affiliate with a student union, simply to escape the duties. That is really important. I have, as do my colleagues, a real concern that this will see a lot of bodies or groups disaffiliating from student unions. Ultimately, the viability of that student union will then be called into question.
Emma Hardy
I want to keep making one point. When we are talking about student unions and organisations, we are not just talking about Oxford and Cambridge; we are talking about all the small universities and colleges as well. It seems fairly ludicrous to me that every aspect of the Bill would apply to the very small higher education provision at Hull College, but would not apply to the junior common room. That does not seem equitable or fair.
Matt Western
My hon. Friend is absolutely right. To that we can add all sorts of institutions—Warwickshire College Group in my constituency and many others up and down the country. That is the concern. We have this absolutely bizarre situation where we will have a two-tier system operating. For some reason, those groups that are viewed by many as being more privileged and, some would say, elite—though I would not necessarily describe them as such—are somehow being protected and insulated from the legislation in a way that others are not. It seems to be an extraordinary contradiction of the legislation when they are perhaps in need of this legislation more than, or as much as, others.
That was the first point in terms of the dual effect: preventing student bodies from explicitly deciding not to affiliate. That is a real concern about the future of student union bodies. The second point was the effect of including outside student bodies, such as JCRs and MCRs. I mentioned the point about removing the picture of the Queen from Magdalen College in Oxford. JCRs and MCRs are just as lively forums as any affiliated student union. I therefore struggle as to why the Minister would not wish to support this proposal. All we are seeking is consistency and a level playing field. There should be one rule for all, not one rule for some.
Sir John Hayes
I heard what the hon. Gentleman said about trade union. Like many in the Committee, I imagine, I served as an officer of the students union when I was at Nottingham. My son was the faith and belief officer at Newcastle University students’ union last year. We understand the significance of student unions, but they must be subject to the same democratic accountability that the right hon. Member for Hayes and Harlington championed a moment ago. The provisions of the Bill in respect of freedom must apply liberally—I hesitate to use that word except pejoratively, but I will—in that way. I am concerned that student unions should not be elevated to a status that prevents them from being subject to the same expectations and disciplines in democratic terms that the right hon. Gentleman is championing.
Matt Western
I thank the right hon. Gentleman for his intervention. I am not seeking for them to be elevated in any way. I just believe there should be direct relevancy to the MCRs and JCRs as well. I want to add that groups that may be beyond the thoughts of the Committee, but that do exist, should also be covered—groups that may be more familiar to certain members of this Government, such as the Bullingdon club or the Piers Gaveston society. If societies affiliated with student unions are subject to the new duties, why should other student groups not be subject to those same duties?
John McDonnell
There is an absurdity at the heart of this legislation as a result of all of this, as my hon. Friend the Member for Brighton—[Hon. Members: “ Kemptown!”] Of course, it is. A wonderful racecourse. In practical terms, the absurdity is that if I want to ensure an organisation is outside the ambit of this legislation, I simply name it “junior” or “common room”. That cannot be right. There is an absurdity here somewhere. It is the point that was made earlier. I have only just grasped how easily that can be done. There have been a number of times in the past when organisations have not wanted to have a full light thrown on their real role and activities. We have seen that. That is exactly what is going to happen here. We are either all in or all out with these institutions; otherwise the legislation becomes unworkable.
Matt Western
My right hon. Friend hits the nail on the head. It is an absurdity and, as I keep saying, an inconsistency. All legislation should be fair and consistent, and the public and, in this case, organisations will see it as disadvantageous or favouring some rather than others. That is really problematic for the sector, and it is one of the unintended consequences that the legislation will lead to. As my right hon. Friend says, we will see what, as I said a moment ago, I fear is a disaffiliation. I see groups being spawned on university campuses that are outside the student union—they will have the moniker “JCR”, or whatever it may be—that will seek to circumvent any responsibilities under the legislation.
Emma Hardy
Some organisations, and some student organisations, will have the ability, resources and staff power to work out how to disaffiliate, and that will happen, but many will not. It comes back to equity. As my right hon. Friend the Member for Hayes and Harlington put it perfectly, we are either all in or all out. Liverpool Hope University, which is one of the smaller universities in Liverpool, has only three full-time members of staff at its student union. It simply does not have the same resources as many other organisations to put to working out how to circumnavigate the loophole that the Minister seems intent on leaving in the Bill. Again, we have this system of inequality and unfairness in the legislation as it is written at the moment.
Matt Western
My hon. Friend is right: there is an issue about how this will work across diverse organisations in the sector. It is problematic because it means that yet again there is one rule for some and another rule for others. When we are discussing, debating and writing legislation, we cannot allow that difference to be compounded in it. It seems absolutely wrong.
I listened with real interest to the conversation that my right hon. Friend the Member for North Durham and his counterpart the hon. Member for North West Durham had about some of the issues that they face on a local campus regarding certain organisations. My right hon. Friend cited particular problems with some of the Chinese-based societies and how they might be acting. This is nothing specific about China—it includes other groups as well—but to amplify that point, if we are not careful such groups will ensure that they are extracted from the remit of the legislation so that they are able to act freely and beyond this law. I urge the Government to take on board this very straightforward, sensible, consistent and pragmatic new clause and include it in the legislation. It is really important, and I am sure that we will hear more from my colleagues.
Lloyd Russell-Moyle
The reason the new clause is important is that it would include all bodies that students might interact with in their role as students, to ensure that the promotion of freedom of speech happens. I will come on to rebut some points that I think the Minister incorrectly made about JCRs, but I first want to talk about the chilling effect. We have heard a lot about it, but if we are to believe what we hear about the chilling effect, it is because a culture has set in—particularly in the student body—in which it is allowed to run rife.
As we know, large parts of student activity are not necessarily in the classroom or lecture theatre; in fact, many students complain that they do not have enough lecture and seminar time. That is a regular complaint of students nowadays because fees are so high. We could have an interesting argument around what the purpose of university is—whether it is instruction, or to enable students to have a wider experience of intellectual endeavour—but I will put that to one side.
However, if the effect is to exclude a swathe of student life and to allow that chilling effect to continue to circulate, the whole point of the student part of the Bill is defeated. The education part or university part? Okay, that is fine. But with the student part, what will still happen, of course, is that students will still be afraid to speak up in lecture theatres, because in the non-regulated part of their student experience they will still not have the culture of free speech and they will be shunned if they do speak up. They will not speak up and feel like they can have their own views, because in one part of their life the chilling effect is not because of formal institutions, but partly because of informal cultures. And if we are not tackling those cultures in all aspects, then we will not deal with this issue. That is why, for example, this measure should extend to JCRs and MCRs.
Earlier, the Minister said that JCRs do not run their own booking systems. That is not correct for all JCRs. St Mary’s College at Durham University runs its own booking system for its JCR. When a student wants to make a booking, they go on to the JCR website and fill in a JCR form, and the JCR allocates a booking. With some of the Oxford colleges, students have to go into the Oxford system, for the whole university, and I have just found that out after 10 minutes of Google research into how the booking systems work. I am sure that a fuller analysis would show that the picture is more complicated, which is why we need to include JCRs and similar facilities explicitly in this measure, so that it is clear.
Michelle Donelan
If the hon. Lady will bear with me, I will come on to student societies.
In deciding what is reasonably practicable, student unions must have particular regard to the importance of freedom of speech. This will allow those involved in all aspects of university life to contribute to a culture of open and robust intellectual debate, without fear of repercussion. Those are new duties, providing new protections and ensuring coverage across campus. Proposed new section A5 will require student unions to maintain a code of practice, which will act as an aid for compliance with the new duty in proposed new section A4.
The code of practice must set out the procedures to be followed when organising meetings and activities, as well as the conduct required in connection with them. That is in addition to the criteria for making decisions about student union support and funding, and who can use premises. The clause sets out the new duties on student unions that are vital for ensuring that freedom of speech is protected to the fullest extent within higher education in England. It is therefore an important and necessary part of this Bill.
New clause 4 would extend the duties on student unions at approved fee cap providers so that they also apply to junior and middle common rooms at colleges and student societies. Taking student bodies at constituent colleges first, the colleges fund their junior and middle common rooms and can exert a high level of control over their activities. We do not believe that imposing the duty on junior and middle common rooms would be appropriate, as they are autonomous, as has been said. Freedom of speech duties would be unnecessary and bureaucratic if applied to junior and middle common rooms. A point was made about booking systems, but even given that junior and common rooms may book rooms, those rooms are owned by colleges and the JCRs have no actual control over them. Given that, we do not believe that including them is necessary as the freedom of speech duties on the colleges will apply to the activities of their student unions. It is important to note that student unions at constituent colleges are not classified as student unions under the Education Act 1994. In addition, the administrative burden on providers to give the Office for Students details of the student unions of their constituent colleges in addition to their own student unions, with the OfS then under a duty to maintain a list of them, monitor their compliance with their duties and deal with them in regulatory terms, as well as under the complaints scheme, would be resource intensive and disproportionate. That point has been made many times by Opposition Members in relation to other issues that have been raised today.
As for student clubs and societies, if they are affiliated to the student union, they will be covered by the student union’s code of practice. If they are not affiliated, they will still be subject to their provider’s code of practice, a point that I think has been missed in today’s debate. For similar reasons to those I have already set out in relation to JCRs and MCRs, we therefore do not think it would be appropriate to extend the duties to cover those clubs and societies directly. I hope that this clarifies the points made, and that we can agree not to accept new clause 4 and to move forward with the rest of the Bill.
Matt Western
The debate on these particular points has been really healthy and robust, and my Labour colleagues’ contributions have been extremely important—I particularly note those of my hon. Friend the Member for Brighton, Kemptown. What we have been saying for the last hour or hour and a half is that all we are seeking is consistency in this Bill, and that we cannot afford to have a two-tier higher education system. The words “iniquitous” and “unfair” have been used, but the problem is that either we recognise there is a need for coverage for all bodies and all groups that are exclusively student, as was rightly said, or there is not. The Minister has just said that it would be unnecessary and bureaucratic for this provision to be applied to middle and junior common rooms. We would say that it is unnecessary and bureaucratic for all institutions, irrespective of what they are or their heritage and history, and particularly for the smaller organisations that we keep speaking up for. As is well understood by many of us in this room, the whole higher education sector is incredibly diverse. Many smaller bodies—further education colleges and so on—will not be geared up to sustain these changes.
Emma Hardy
Maybe the Minister cannot provide the evidence for this, or maybe I am making a mistake, but I do not understand how non-affiliated student societies that are privately funded will be covered under the Bill as it is written.
Matt Western
That is my real concern, which I was just about to come on to. There is real fear about these well-funded bodies; I mentioned the Chinese groups specifically because that point was raised by both sides, by my right hon. Friend the Member for North Durham and by, I think, the hon. Member for North West Durham. There is increasing evidence that these groups are seeking to influence our campuses from beyond, and that those groups will not be affiliated to those institutions.
The Chair
May I just remind the hon. Member that we are summing up here, rather than making a brand new speech, because time is pressing.
Matt Western
Mrs Cummins, I am sorry if it was not clear that I was trying to sum up the points that were put so well by my colleagues. The Minister has said that these non-affiliated groups would be covered by these duties, but it is not clear to me or to my colleagues how that will be the case.
Michelle Donelan
To clarify, if a non-affiliated group were having an event on a university campus, it would of course be covered under the university’s code of practice.
Matt Western
I thank the Minister for her intervention. I do not mean to try her patience; the points we are trying to make are simply an attempt to explore absolutely all eventualities. We have talked about PBSA—purpose-built student accommodation—and the increasing amount of private sector premises on campus and elsewhere that are being used by universities. I can speak from local experience. In Leamington, we have private accommodation that is being used by the student union.
Matt Western
I thank the right hon. Gentleman for illustrating and articulating the point that I was alluding to, but was not being specific about. I am sure the Minister will have listened to the important point he makes.
I understand the Minister’s point about these groups being covered on campuses, on premises that the university may control, but how would that apply to, for instance, the private properties in Leamington that are used by Warwick University?
Lloyd Russell-Moyle
The Minister said in her useful intervention that if it is a university property, it will be regulated, but we are talking about private property that the university does not run but just directs students to. The university has a big signpost saying, “This is our accommodation,” but as soon as students step over the threshold, the university has no regulatory role, no delivery role—no anything role. What is provided in that property is student space, meeting rooms and accommodation. That is the nub of what we are trying to get to.
Matt Western
It is exactly that. I will not spin the wheels and repeat exactly what my hon. Friend has said, but perhaps the Minister would like to respond.
Michelle Donelan
I appreciate the point that hon. Members are trying to make, but I think it is time to step back and reflect on the consequences of what they are arguing. They are effectively arguing that if a group of students were in their homes, or if they organised an event in a pub, we would have to regulate that. We have to be reasonable about what we are asking universities to regulate and what is in their control.
Matt Western
That is the issue, perhaps in part, with the Bill. The Government are trying impose, top down, a series of responsibilities and duties on universities to oversee and implement this legislation. The points we are making are about how many loopholes there are and how groups, particularly well-funded groups and private societies, will disaffiliate from the union and seek other premises in which to practise this sort of speech.
Mr Richard Holden (North West Durham) (Con)
Quite clearly, some parts of an institution come through a university—its student union, properly affiliated to it; student bodies; its faculty—but this provision also includes individual students, and when those individuals come together, they are not representing the university. It is not top down. All the Government are trying to do is to ensure that anything that comes down through the institution is covered, whereas things that essentially come from groups of students getting together in a non-formal setting are different. I can see the difference, and I am sure that the shadow team could also reflect on the clear difference between those two things.
Matt Western
I understand the hon. Gentleman’s point. My colleague wants to make a short related point, and I will respond to both together.
Lloyd Russell-Moyle
This is the nub of the contradiction. That is why some of us suggested that the Minister could, to be consistent, remove student societies from the regulation. If students come together and organise a club that just happens to affiliate to the student union—even if they are totally autonomous and there is no role for the institution—the Bill regulates them. If they decide not to affiliate to the institution, but do everything else the same, the Bill does not regulate them. All I am saying is that it needs either to regulate them or to say that it regulates the student union but does not go down further to regulate the constituent parts—for example, a speech at the student Conservative club should not require monitoring by the office of diktats.
Matt Western
It is about affiliation, or the decision of groups to disaffiliate from the student union, as well as how private property will come into play. We have simply said that it should be all or none. We cannot have a two-tier system for this regulation.
The new clause is very simple and straightforward. It is pragmatic and would bring about sensible changes and protections, which is what I thought the Government were trying to do. At the end of the day, without such changes the whole legislation is exposed for what it is and will not deliver the protections that the Government believe they are going to introduce.
Clause 2, as amended, ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Michael Tomlinson.)
Higher Education (Freedom of Speech) Bill (Sixth sitting)
Matt Western Excerpts(2 years, 7 months ago)
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Fiona Bruce
I thank the hon. Lady for that gracious intervention. It is a pity that I cannot speak to amendment 60 in the same moment, because I think that would help clarify my reasoning for this amendment. I am concerned that without the express inclusion of students, there is a risk that those most vulnerable to self-censorship and adverse consequences in academia, such as being marked down, will remain unprotected.
There is the argument that freedom of speech, as referred to in the Bill, is sufficient to adequately cover students without the need to cover them through the term “academic freedom”. However, I would question that, as demonstrated by the examples I have given involving Professor Biggar and the midwifery student. I look forward to the Minister’s comments and ask her to consider the amendment as the Bill progresses.
Matt Western (Warwick and Leamington) (Lab)
It is a pleasure to serve under your chairmanship, Mrs Cummins. I listened to what the hon. Member for Congleton said. We have to be wary of where the amendment could take us in terms of the status conferred on academics by the term “academic freedom”. As the Minister herself said, it is a subset of a freedom of speech, but it is a really important one. That is why we sought to eke that out earlier, in order to make it sacrosanct: it stands alone, but it is linked to freedom of speech.
As regards the notion that students in their third week on campus could gain the status of academic freedom, I am not entirely sure, speaking from personal experience, that it would have been right for me to have been given that status when I had a degree of naivety about a particular subject, but I would be under the hon. Member for Congleton’s amendment. I do not think that that is right, because we are essentially putting students on the same level as those who have gone through a process of academic rigour to arrive at a position where they deserve this particular freedom and status.
Emma Hardy
We all agree that we want freedom of speech to apply to students. I wonder whether, as the Bill progresses, we might find an alternative place to make specific reference to them.
Sir John Hayes
I am very grateful to the hon. Gentleman for giving way. I take his point about the technical difficulties with what is proposed. He is right about the different status and, indeed, different challenges faced by students and teachers. None the less, as my hon. Friend the Member for Congleton said, there is an issue—we heard this in evidence—about students self-censoring, and students may fear that they cannot say what they think. That could be outside teaching or it could be in seminars and so on. Therefore we do need to address the issue of students. Whether or not this proposal is the best vehicle to do so, I am sure the hon. Gentleman would agree with that.
Matt Western
I thank the right hon. Gentleman for his point and, likewise, my hon. Friend the Member for Kingston upon Hull West and Hessle for hers. I accept that there is a need for protection under freedom of speech. The differentiator for me is about academic freedom. I totally concur that all students, whether they be postdoctoral students or students in week two, arriving on campus in September or October of this year, have the right to freedom of speech, to say what they wish to say—with responsibility. But there is an area where I differ, and this was what I was edging towards in my questioning to various academics during the two witness sessions. What Professor Stock actually said was interesting. She made this very distinction. She thinks that
“the difference between academic freedom and freedom of expression”—
I am quoting her word for word—
“assuming there is one, can only be in principle grounded in expertise.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 11, Q17.]
That is the case however we wish to define that expertise. And there is a problem, actually, about how people might consider what expertise is. I would say that the expertise is much more to do with methodology and understanding of academic rigour and discipline and how an academic arrives at a process of thinking, which a student is not necessarily—
Matt Western
Yes, learning—going through that development. That is why students are attracted to going into higher education. It is to understand about the process of that academic rigour and methodology.
Lloyd Russell-Moyle
Some of the evidence that we heard from a number of the Government and Opposition witnesses was that, actually, part of the problem is the commercialisation in higher education, whereby students see themselves as customers and consumers and then demand more and demand their rights. There are some advantages to that, but there are clearly some disadvantages to it. There is a danger, is there not, that if this were used in the consumeristic mind of certain students, it could prevent the instruction of certain basics that students must accept to progress? Students could claim, “You’re not letting me progress even though I reject the way light moves through a lens.” It is perfectly legitimate for an academic to do that at a higher level, but if someone is teaching optometry, they require the student to accept certain basic principles to be able to progress and to look into people’s eyes. There is a danger that, with a consumeristic mind and with a more litigious mind, some students might end up shutting down academics and actually stopping them doing their instructive part rather than their research part.
Matt Western
I thank my hon. Friend for his, as ever, valuable contribution—and specialism of optometry. I always try to look through a rose-tinted lens. More seriously, the point he makes is made very well—[Interruption.] I missed that point. To be serious for a moment, my hon. Friend’s point is well made. It is about consumerism. I guess one of the things that motivated me to get into politics was that, as a kid of the 1960s and ’70s, I enjoyed education and access to all sorts of things without the privilege of money. We need to row back on how consumerism is becoming so corrosive of relationships between all sorts of authorities—I am not talking only about universities. How people view public service, in whatever manifestation, seems somehow to be about getting one’s money’s worth, whether on council tax or, in this case, educational fees.
Matt Western
I will give way to my hon. Friend, and respond to the interventions together.
Emma Hardy
I am sorry, Mrs Cummins, I did not realise that in declaring our interests we had to say what our partners do. My partner is at the University of Hull doing degree apprenticeships, which I am very proud of.
To respond to the hon. Member for Congleton, our amendment 44 includes the words
“and in the conduct of research”,
to close the loophole that she has just mentioned, of a doctoral student involved in research. We would like to close the loophole with that amendment.
Matt Western
I thank the hon. Member for Congleton and my hon. Friend for their interventions. Yes, there is a differentiation between doctoral and undergraduate students.
Vitally, with academic freedom, special status is conferred. It is not something someone gets just because they turn up on a campus, or sign up to the Open University or whatever; it has to be conferred on those individuals who are, in essence, academics in the traditional sense. What they have is founded on their research—that thinking, the methodology, the scholarly debate. Ultimately, because their work is peer reviewed, it is understood to have a robust methodology. They have earned that—I used “earned” in the witness sessions, which was perhaps slightly the wrong word, and there might be a better word. It is an appreciation that the academic has gone through the academic thinking that has led them to express a particular thought or piece of research and outcome.
To my mind, that is the essential element, the primacy of academic freedom, which is why it is so important to separate it out from freedom of speech—hence our points this morning. Academic freedom defends the right to express ideas based not simply on opinion, but on academic research. I stress that point.
In the evidence session, the hon. Member for Congleton said:
“I am thinking not only that academic freedom is important generally for anyone at a university, but that some students, such as doctoral students, may also be tutoring.”—[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 97, Q196.]
As she said earlier, that is an important distinction because that role has been given to them by the university. It has conferred on that person a status, and there is a responsibility that goes with it. That is a very important distinction.
Sir John Hayes
The hon. Lady now really is opening a hornet’s nest with the issue of money, how universities are motivated, and how far that is skewed. I have struggled against the narrow interpretation of learning as an entirely utilitarian matter for all my political career, including my ministerial career. As Committee members will know, I was a stout defender of adult and community learning, not because it was necessarily and directly linked to employment, but because it fed societal wellbeing. Let us make the case for the glory of learning for its own sake.
The hon. Lady provoked me into that digression, Mrs Cummins, but she is right to say that sometimes universities are driven by those utilitarian purposes, hence my point about senior management. We have recently heard about money from outside sources—China was mentioned in our witness sessions, and rightly so, given recent revelations. There are all kinds of ways in which what is taught and learnt at universities can be altered by factors that go well beyond the interests of either academics or students. I am concerned about the matters that the hon. Lady has raised, and the Government will have a watchful eye on all that, too.
I have a fundamental disagreement with Opposition Members, in that I think the Bill is welcome and a good thing. I know that they have reservations. However, I am equally sure that if the Bill is to be effective, it needs to be as well drafted as it can be. That is precisely what scrutiny is designed to do. In that respect, drawing out and codifying the distinction in some way seems to me to have value. I make no definitive judgment about how that should be done; my amendment is very much a first stab.
I should not say before the Minister has spoken that I will not press the amendment to a Division, or I will extract no concessions from her. Instead, I shall hang on, hold fire, and hear what she has to say. The amendment is very much designed to push and probe the Government, but if she says it is a complete load of nonsense, I will have to test the Committee’s view.
I feel some responsibility to reflect the fact that the amendment is one of a group. There are some very good amendments in the group, tabled by Members on both sides. I will not name them all, but amendment 48, in the name of the hon. Member for Warwick and Leamington, is helpful, and amendment 60, in the name of my hon. Friend the Member for Congleton, brings value to what we are doing. A number of strong amendments in the group are designed in a constructive way to hone and improve the Bill. I will not go through them all because that would be tedious and people can speak for themselves, but there are some good amendments worthy of further consideration by the Committee and the Government.
Matt Western
I thank the right hon. Gentleman for his remarks and his amendment, which has generated a huge amount of debate. It is interesting that several of us have had a go at the same provision to embellish and improve it. The definition of academic freedom is loose and hard to pin down. The fact that three amendments are addressing it emphasises how concerned we all are about how it is defined.
The right hon. Gentleman’s amendment seeks to expand academic freedom to encompass how a teacher delivers their classes. The amendment tabled by the hon. Member for Congleton goes a little further in seeking to protect academics under the umbrella of academic freedom whenever they express an opinion about the practices of a provider. I guess that this is where we get into subjective interpretations of what academic freedom should be.
During my research I came across part 6 of the UNESCO definition of academic freedom, which guides my thinking and that behind amendment 46, tabled by me and my right hon. Friend the Member for Hayes and Harlington. Under the UNESCO definition, the concept of academic freedom is broken down into five parts: freedom of teaching and discussion; freedom in carrying out research and disseminating and publishing the results thereof; freedom to express freely their opinion about the institution or system in which they work; freedom from institutional censorship; and freedom to participate in professional or representative academic bodies.
My concern about the amendments tabled by the right hon. Gentleman and the hon. Member for Congleton is that they are trying to nail down a definition, but may have left out a couple of crucial components. Amendment 46, tabled by me and my right hon. Friend the Member for Hayes and Harlington, is a compromise with the position of the right hon. Gentleman and the hon. Lady. It touches on two of the most of crucial elements in providing that clarity: freely pursuing chosen topics and expressing views of their institution. Interestingly, the University and College Union favours an amendment in the realm of ours. It is also deeply concerned that narrowing the definition of academic freedom will limit the ability and willingness of education staff to speak out on wider social or political issues, or indeed against their employers. An amendment such as ours would offer expansive protection for the academic freedom of staff, including from pressure and censorship by public authorities like the Department for Education and the Office for Students or by employers.
The amendments would offer protection against redundancies targeted at particular academic disciplines or those perceived to be politically motivated.
Emma Hardy
My mistake, Mrs Cummins, for not realising that the amendments are grouped and that I should be talking about all of them. An aspect of academic freedom and the importance that we want the Bill to place on the role of academics is illustrated by amendment 27, tabled by the hon. Member for Congleton. We should not restrict academics with the narrow definition including:
“within their field of expertise”.
We do not know who will make the definition. That is an important issue, too.
Matt Western
I thank my hon. Friend and I shall address that important point shortly.
Amendment 47 would protect academics against not securing promotion in respect of different jobs in other institutions. It aims to ensure that academic freedom is protected across the range of roles that someone may hold, not simply where an issue may arise. For instance, an academic may be employed by two HE institutions or hold various visiting professorships. The amendment would ensure that an institution cannot punish an academic for disagreeing with research or published work at another institution.
This links with open, transparent career development —an honest approach. We heard from Tom Simpson that decisions on research grants and appointments are made in the culture of the office. To a certain extent, that is inevitable. That is the reality of how organisations work, but I get what he was trying to say. Amendment 48 would prevent a university from denying training opportunities. as a way to punish an academic for the views they hold. The essential difference from our amendments is that they seek to protect those who can benefit from academic freedom.
Amendment 60, tabled by the hon. Member for Congleton, on the inclusion of adverse impacts on educational progress, implies that academic freedom ought to be given to students. We had a long debate about that. I have reservations about it, and I am not convinced by the argument that was made in the previous debate. The experience that I have gleaned from discussions with higher education institutions in the past six months is that many assessment methods are anonymised. Each student is given a unique number and papers or their equivalent are marked by several academics to avoid discrimination. Institutions do their utmost to ensure that discrimination does not prevail and damage students’ progress.
For those who can and should benefit from academic freedom, I have sought to expand the definition to include innovative research. Amendment 45 would ensure that the definition of academic freedom includes the world-class innovative work carried out in our universities. The current definition in the Bill simply covers new ideas or controversial or unpopular opinions, but most of the socially or scientifically beneficial or prize work conducted by academics is innovative, rather than falling into those narrow categories. The right hon. Member for South Holland and The Deepings expanded on that point, and said that it would be valuable to include that, mentioning Galileo and Darwin, who conducted innovative research centuries. The two go hand in hand. Think about Rosalind Franklin and the ground-breaking work she did in the face of a counter-view in society about genetics; she clearly did incredibly important research. More recently, we have Oxford’s work on vaccines. That kind of work has to be protected at all costs.
One of our witnesses, Dr Ahmed, believes that certain forces are leading academics not to pursue lines of research that they think might be fruitful. Research is fundamental, and it is important to protect it. I can well understand the perspective of institutions on the work that is done and why they seek to have some sort of direction over research and teaching wherever possible. Various Members, however, spoke about how institutions present themselves in what has become an incredibly marketised sector. The institutions did not create that situation; it is the result of what was put in place years ago, and they have to respond not just to a UK market but to a global market for higher education. They are trying to appeal to the needs of the UK, what students wish to study and what research is needed, as well as looking at trends, approaches and the needs of global society.
Emma Hardy
I risk straying from the Bill, so I will be quick. The evidence that we heard and our discussions today show that the marketisation of higher education has had a negative impact on the student experience. I hope that the Minister takes that evidence seriously, as well as the remarks that Members on both sides of the Committee have made about the impact of marketisation on education, so that in a future Bill Committee we can secure consensus on an alternative model.
Matt Western
I thank my hon. Friend for her intervention. I totally agree.
In response to the point raised by right hon. Member for South Holland and The Deepings about the detransitioning research at the University of Bath, Professor Whittle said that
“had Bath addressed it properly, they could have done more to say, ‘This needs sorting and this does before we will consider it.’”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 41, Q75.]
The amendment would incorporate innovative research under the academic freedom duty, which would push the likes of the University of Bath towards exploring further how such research proposals can be encouraged.
The issue goes both ways and cuts across the political divide, as we have heard. A briefing I received from Ruth Pearce from the Center for Applied Transgender Studies revealed examples of where research has been disrupted by aggressive anti-liberal voices. That included Peel and Newman’s survey on legal gender, which received an uptick in polarised, confrontational responses after being shared on a UK anti-trans forum. Stein and Appel describe how a survey on young LGBTQ people’s experience of cyber-bullying in Germany was derailed, with nearly every dataset containing expletives and hate speech.
That work needs to be protected under the legislation, and most academics would agree that this kind of work falls within their academic freedom. Amendment 47 would also bring us in line with the German model, which is based on the Humboldtian approach and focuses on the unity of teaching and research, with both staff and students able to enjoy academic freedom. It is important to include innovation within the definition of academic freedom in the Bill.
Amendment 27 addresses the point about field of expertise, which was raised by the hon. Member for Congleton. I share some concerns about this, as do my colleagues. Indeed, my hon. Friend the Member for Kingston upon Hull West and Hessle commented in the evidence session on the submission from Professor Anderson, saying:
“His concern is around changing the wording in the Bill from ‘freedom within the law to question and test received wisdom’ to ‘freedom within the law and within their field of expertise’.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 10, Q17.]
I have concerns that a Bill allegedly intended to promote academic freedom could limit it if people are limited to what their field of expertise is.
Sir John Hayes
I entirely agree, and I wanted to say that on the record. Professor Biggar made that point, too, as the hon. Gentleman will remember. The problem is how we define someone’s field of expertise. If we define it too narrowly, they will not be covered. The Minister, I know, will have an explanation of this and a counter-argument that may satisfy us, but I am concerned, as witnesses were and the hon. Gentleman is, that we risk getting this wrong in the Bill unless we take account of the fact that people’s field of expertise is often broader than the definition of what they do professionally. Expertise is a complex thing. I think we need to look again at this. I am sure the Government will have heard what the hon. Gentleman and others have said.
Matt Western
I thank the right hon. Gentleman for his intervention. Yes, we heard virtually all the academic witnesses and others express the importance of this point. Dr Ahmed, referring to Professor Stock, spoke about Professor Richard Dawkins, saying:
“theology is not his area of expertise. Many…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.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 11, Q18.]
Emma Hardy
This is crucial. This small amendment would remove five words from the Bill; it is incredibly small and very easy for the Minister to agree, but incredibly important. If the Bill is what it is claimed to be—a Bill on freedom of speech and academic freedom—and if the Minister honestly believes that that is what is written here, she will accept the amendment to remove
“within their field of expertise”,
because that is a limitation on academic freedom. It is clear, and no future guidance will change it. If those words are left in the Bill, academic freedom is limited. I cannot put it any more strongly than that. All the evidence we heard made the same point. I hope the Minister will accept the amendment.
Sir John Hayes
Is this not about areas of interest versus fields of expertise? An academic may have areas of interest that extend beyond the strict and narrow definition of their expertise in their subject. By using that sort of term—I am sure the lawyers will go one better—we might be able to solve the problem.
Matt Western
I thank my—I was about to say hon. Friend. I thank the right hon. Gentleman for that point. I am sure that my hon. Friend the Member for Kingston upon Hull West and Hessle will elaborate.
The reality of the academic community in higher education is that their areas of work are fluid. They do not see themselves as necessarily specialists in one field or another. As we heard in our evidence session, a statistician is a mathematician, but a mathematician could become a specialist or well versed in issues such as migration or epidemiology—medical science, in essence. How does one define “their area of expertise”? We have to be extremely careful. The right hon. Gentleman’s suggestion may well be in the right area, but much more consideration is needed, and for the purposes of the Bill we have to remove these words.
I will not expand on what Professor Nigel Biggar said. That has been done already.
Charlotte Nichols (Warrington North) (Lab)
On amendment 27, I am interested in what form of words other than
“within their field of expertise”
could be used to act as a safeguard, because we might see cases in which academics are picked up for use of their freedom of speech more widely, but there is a distinction between freedom of speech and academic freedom.
Matt Western
My hon. Friend is quite right. We have not proposed anything that necessarily refines that. At this stage, I think, it is important to remove the words, and minds greater than mine—perhaps in the House of Lords—may come up with an alternative. It is a really important area that needs to be defined.
Lloyd Russell-Moyle
My hon. Friend has already developed the phraseology and wording in his comments about research and academic interest. Were a matter within an academic’s research and interest areas, that would be their definition. It would be broad enough; it would also go to amendment 80 and the right to teach in areas of their academic interest and research, and resolve my concerns about that amendment. It would be good if the Government were to reflect on that phraseology.
Emma Hardy
The original definition of academic freedom did not have these five additional words. The Government chose to add them. I do not believe we need to rewrite or put in words. Originally, the definition of academic freedom was:
“freedom within the law to question and test received wisdom…put forward new ideas and controversial or unpopular opinions, without placing themselves at risk”.
The Government added the unnecessary words
“and within their field of expertise”.
Matt Western
Some of us are agreed that it should not be in there, and I think the House of Lords should explore whether further definition is required.
From talking to academics over the last six months and more, I want to stress how incredibly fluid the areas of research they work in are. They go through wholesale change in areas of interest and exploration. That is the kind of innovative research we want, and it is one of the great things about our institutions. People talk about UK universities being the best in the world in different categories, but we genuinely do have a very strong reputation for higher education globally. It needs to be protected.
We support the amendment by the hon. Member for Congleton on the removal of those words. We will, of course, support the amendments standing in my name and that of my right hon. Friend the Member for Hayes and Harlington.
Fiona Bruce
I will speak to my amendments 26 and 27 and, very briefly, to 60. I had hoped that the short but crucial amendment 27 might attract support from both sides of the Committee. Judging by some of the comments from Committee members today, not least the hon. Member for Kingston upon Hull West and Hessle, I continue to live in hope. I had hoped even the Minister might give a positive response to the amendment.
The hon. Member for Warwick and Leamington has already made the point that the Bill is intended to protect and promote academic freedom, but may in fact restrict it if academic freedom is defined as an academic’s freedom to express views only within their field of expertise. There are real problems with this phrase. We have heard some of them already, as my right hon. Friend the Member for South Holland and The Deepings has said.
To elaborate on some of the comments made, an initial difficulty is that of defining an academic’s field of expertise. Giving evidence, Dr Ahmed raised the very good example of Professor Richard Dawkins, who is an expert in evolutionary biology. Dr Ahmed said that one could argue that theology is not within his field of expertise, or even competence, yet his freedom to critique religion and contribute to the debate on God should not be denied to him merely due to an arguable lack of specific expertise.
Michelle Donelan
This particular element of the Bill does not deny people the ability to speak on anything, because as I have already stated, academic freedom is a subset of the broader term “freedom of speech”, so they would be covered by that as well.
Matt Western
I heard the Minister’s point about committing to go away and discuss this issue and so on. Things are clearly moving quite fast in the reshuffle. I would like to think that she will still be in her post and perhaps will not have been promoted—perhaps she wishes to be promoted—but the essence of this is so important that I think it goes beyond the words of this Minister because in two weeks’ time we could have a very different person actually handling this particular issue.
Michelle Donelan
I can see what the Opposition are cleverly trying to do here to push me to go further than my words, but I am sure that the hon. Member will understand that the words that I am using today will be on the record in Hansard for ever more and for any future Ministers in my position or, indeed, me to revisit in a few weeks’ time.
Amendments 60 and 68 seek to extend the concept of academic freedom to students as well as academic staff. There are long-standing reasons why academic freedom for academic staff is considered so important and particularly worthy of protection under article 10 of the European convention on human rights. Academic freedom for academic staff is a long-standing concept that is already used in legislation—including the Higher Education and Research Act 2017—and is understood in the sector. It has also been considered in an international context. An example is the 1997 UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel. As is clear from that recommendation’s title, academic freedom concerns teaching personnel, not students. Strasbourg case law also confirms that, in determining whether speech has an “academic element”, it is necessary to establish whether the speaker can be considered an academic.
Accordingly, the academic freedom provisions in this Bill are relevant only to those who are academic staff. That will include those who are employees of the provider, but also those staff who do not have employee status. That could include staff who undertake teaching or research as part of an honorary appointment for which they are not paid. Similarly, it will mean that PhD students who teach undergraduates at the provider can be considered to be academic staff for that purpose. However, as I have committed to this morning, I will consider this topic once again.
A first-year undergraduate student would not be considered to have the particular protection afforded by academic freedom. But I reiterate that all those on campus, whether a student, a member of staff, members of the provider or visiting speakers, are nevertheless covered by the freedom of speech duties placed on providers. That is made very clear in the Bill. I hope that Committee members will be reassured by what I have said and understand the rationale behind maintaining that the additional layer of protection for academic freedom should be reserved for academic staff, but I will, as I said, consider this.
Charlotte Nichols
I thank my hon. Friend for that really important contribution. As we have heard from a number of witnesses, holocaust denial—as I said, I am sure that everyone present finds it objectionable—is, in fact, lawful free speech that could be protected under the regulations currently in the Bill, unless we ensure that the limitations of free speech and academic freedom are spelled out explicitly on the face of the Bill.
As we have talked about a lot over the past couple of days, it is really important that speakers, academics and students have academic freedom. Clearly, other pieces of legislation that are in place—not least libel law, the limits that are set out in the Prevent duties that universities have to abide by, and the limits set out in the Equality Act 2010—must be read alongside the Bill, but none of those is sufficient to prevent holocaust denial. I am particularly keen to expand the definition of holocaust denial to genocide denial. Just as we not only commemorate the Nazi holocaust of Jews, disabled people, Roma and Sinti, LGBT people, trade unionists and other minority groups within Europe on Holocaust Memorial Day every year, we also commemorate the subsequent genocides in Rwanda, Darfur, Cambodia and Bosnia.
We have spoken about universities trying to appeal not only to a market within the UK, but to a global market. If there are no limitations on free speech, what message would it send to students from places such as Rwanda, Darfur, Cambodia and Bosnia? What would it say to students from Germany, where they have much more robust laws in place to ensure that holocaust denial and denial of other genocides—which is of course a disgusting desecration of all those who lost their lives and who suffered in those genocides—is not perpetuated within higher education institutions? The duty of care that institutions have towards their students is incredibly important, and it is something that we need to ensure is not lost as a result of the unforeseen consequences of passing a Bill that does not have the limitations that I have set out in amendment 32. The following amendments, which are in the name of my hon. Friend the Member for Warwick and Leamington, clarify some of the technical points throughout the Bill to ensure that amendment 32 can stand.
I think that any right-minded person would want to ensure that protections are in place. It is something in which there is a clear public interest, because it is objectionable that universities might have to spend money to fight legal cases against genocide deniers who demand a right to a platform on their campuses. There is also a really important public order point, because when people from the far right are invited to speak on university campuses, there is often, naturally, a reaction from the student body, who protest their presence. Nick Griffin turning up on various campuses over the years has meant skirmishes. Sometimes, such people bring along heavies with them, who will cause problems, start fights with students and make students on that campus fundamentally less safe while they are there. Of course, they are there to radicalise people and bring them round to their far-right cause. They are there to recruit, so the idea that it is an academic exercise is for the birds—these are people coming on to campuses to radicalise young people.
We expect a vote shortly and we want to discuss a lot of other things, but I want to ensure that the amendment is given proper consideration and that those safeguards are put in the Bill to make sure that the well-meaning, I am sure, assurances of the Government do not turn out to be meaningless in effect.
Matt Western
Briefly, I thank my hon. Friend for her clear and considered speech in support of the amendments, some of which are in my name, given that we were not entirely sure how they would fall over the four days of the Committee.
In the evidence sessions and on Second Reading, we heard just how concerned people are. My hon. Friend the Member for Kingston upon Hull West and Hessle mentioned the evidence given by Sunder Katwala, but I am think too of the moving comments by my hon. Friend the Member for Leeds North West (Alex Sobel) about his experience at Leeds University and the prospect of having the likes of David Irving or Nick Griffin coming on to campus to speak. I will also just pick up on the point made by Professor Whittle:
“If, for example, somebody who clearly denies the holocaust wishes to speak at a university, I would think that was not acceptable. There are certain historical facts that are sacrosanct and you cannot say that they do not exist, unless you have extremely good evidence to the alternative.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 39, Q73.]
The amendment seeks to draw a line under the question, what constitutes reprehensible but lawful speech that is inimical to academic freedom? I cannot see any academic benefit to denying any genocide, and it would do great harm to an academic were such views espoused on campus, as well as to the wider academy, let alone damaging student welfare.
Michelle Donelan
Amendments 32 to 34 and 69, taken together, seek to exempt providers and student unions from the duty to secure freedom of speech of persons who speak or intend to speak to deny genocide. The Government, however, are clear that genocide denial, including denial of the holocaust, is abhorrent and morally reprehensible. The new director will produce extensive guidance to assist universities, further to the points made by hon. Members. That guidance will make it clear that the European Court of Human Rights has held that holocaust denial is not protected speech under article 10 of the European convention on human rights. As such speech is intolerable in a democratic society, and that holocaust denial, even if dressed up as impartial historical research, must be seen—
Lloyd Russell-Moyle
I have a professional connection with the University of Sussex and the University and College Union, and I am a trustee of the University of Bradford union.
Matt Western
I wish to register that my wife works at a particular higher education provider.
Higher Education (Freedom of Speech) Bill (Fifth sitting)
Matt Western Excerpts(2 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
We will now start dealing with amendments. These proceedings are being broadcast, and I think that the best way forward is for people to learn from their mistakes during proceedings, if they make any, rather than for me to remind them of the procedure at the beginning.
Clause 1
Duties of registered higher education providers
Matt Western (Warwick and Leamington) (Lab)
I beg to move amendment 50, in clause 1, page 1, line 8, leave out from beginning to “must” and insert:
“Every individual and body of persons concerned in the government or management of a registered higher education provider”.
This amendment expands the duty on a governing body of a registered higher education provider to take steps that are reasonably practicable to secure freedom of speech within the law to include any individual or body of persons concerned in the government or management of a registered higher education provider.
I thank you, Sir Christopher, and your co-Chair, Mrs Cummins, for your chairmanship up to this point. I also thank the Clerks for all their work keeping us in order and for putting everything together.
I have not checked the numbers this morning, but it is interesting that some 84 amendments and counting have been tabled. That underlines the fact that many of us, especially Opposition Members, have profound reservations not only about whether the Bill is needed but about its extent and its detail. If it was a dog’s breakfast before, it looks like a bit of a canine meal plan this morning.
Amendment 50 covers a small but important detail. We are here to be constructive and to try to make the best of the Bill, and this is the first example of that. We are seeking to broaden the meaning of the “governance” of an institution. We do not want it to be too narrow, or to simply mean the senate or board of trustees. Recognising the complex nature of modern higher education institutions, we want the term to reflect the wide array of professionals involved in university administration who should be subject to the legal requirement to uphold freedom of speech and academic freedom
It is important that we recognise the diversification of the management of the HE sector. It seems that the Bill’s wording is a carbon copy of the section 43 duty under the Education (No. 2) Act 1986. We have repeatedly heard from the hon. Member for Congleton about the need to develop the 1986 Act to reflect today’s reality, and that is what the amendment seeks to do.
All we are asking is that the legal duty be expanded to include anyone involved in the government or management of a higher education provider, rather than solely the governing body, as is the case in the Bill as drafted. The definition is far too narrow. It is the wording of yesteryear and does not reflect the complex nature and structure of the governance of the universities and higher education institutions of today. Indeed, Professor Stock said in her evidence that, thanks to the consumer dynamic, universities are presenting their best public relations face to prospective students, and that involves a plethora of people behind the scenes, including human resources professionals. Tom Simpson, likewise, in his evidence, stated:
“At the moment, the crucial question is the position of those involved in university leadership and administration.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 71, Q148.]
We wish to be constructive today and in the coming days, and will do our best to try to refine the Bill to make it workable. We do not believe clause 1 is absolutely necessary, but we will do our best to refine it and make it practical. That is what amendment 50 seeks to do.
The Minister for Universities (Michelle Donelan)
I, too, thank the Clerks for their work in facilitating this Committee.
Amendment 50 would reinstate the wording currently in section 43(1) of the Education (No. 2) Act 1986, where the freedom of speech duty applies to individuals and bodies involved in a higher education provider’s governance or management. The approach in the Bill, which is to impose the duty on the provider’s governing body, is taken for a number of reasons. A key plank of the Bill is introducing new enforcement measures, including a new Office for Students complaints scheme and a statutory tort. In the light of the potential for tortious liability, it would not be appropriate for the duties to apply to any individual in that management. It should be the provider that is held responsible by the OfS or the courts. Of course, the provider will generally be liable for the acts of its staff in any event, so the change in emphasis will not necessarily make any difference on the ground. The provider will require its staff to act in accordance with the duty, as it will be held liable for their conduct. This approach mirrors other statutory duties imposed on the governing bodies of higher education providers, for example under the Equality Act 2010. It therefore makes sense for the same body to be responsible for all relevant duties under consideration.
I hope that reassures the Committee that the amendment is not needed. The Bill ensures that responsibility for the freedom of speech duties will lie with higher education providers, and and that where they are found to be in breach of those duties, they can be held to account.
Matt Western
I hear what the Minister says, but the amendment is not aimed at every individual in a higher education institution. It is specifically about every individual and body of persons concerned in the government or management of a registered higher education provider. The crucial point is that it absolutely is about those involved in the governance and wider management of the institution, not every individual within that university or higher education institution. I stand by the amendment and wish to push it to a vote.
Question put, That the amendment be made.
Matt Western
I beg to move amendment 51, in clause 1, page 1, line 9, leave out “importance” and insert “primacy”.
The Chair
With this, it will be convenient to discuss amendment 43, in clause 1, page 1, line 10, after “speech” insert “and academic freedom”.
This amendment would require the governing body of a higher education provider to also have particular regard to the importance of academic freedom.
Matt Western
As I said in my opening remarks, I believe that numerous small-detail changes to clause 1 that might make some difference can certainly be made, albeit that we believe that much, if not all, of this has already been written and is already in legislation. Nevertheless, changes can be made that could bring about a certain pragmatism and greater effectiveness to what is being proposed by the Government.
These two amendments involve just a couple of words. Amendment 51 relates to a perhaps slightly nuanced, but none the less important, interpretation. On the first Bill that I examined, I was in the company of the right hon. Member for South Holland and The Deepings, who was leading for the Government on their Bill on electric and autonomous vehicles. Listening to him and to others, I realised just how important language can be. The nuance of language is certainly important in both amendments.
Amendment 43 is quite specific and extremely important. I use the word “important”, and I am just about to examine the word “importance”. It is vital that we understand the significance of the amendment. The amendments address the relative importance of freedom of speech and academic freedom. We heard in the witness sessions that some people speak of a “chilling effect”, and it is interesting how language gets adopted and then becomes an assumed state. I think there is some appreciation that there are concerns out there and that things can and need to improve, but through the amendments I want to consider the weight we place on these two distinguishable concepts in the Bill, which arguably will affect how effective the Bill is at reducing the issues described by various witnesses.
Amendment 51 stresses the “primacy” of freedom of speech. Clause 1 inserts in the Higher Education and Research Act 2017 new part A1, which stresses that to secure freedom of speech within the law:
“The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable”.
“Importance” is such an important word. Often, it is overly important and very subjective. What does it actually bring? As we heard during the evidence sessions, the importance that one person places on freedom of speech can vary, whether it be unparalleled—I am thinking of the evidence we heard from Professor Goodwin, and his desire to invite fascist groups such as the National Front to speak on campus, infringing upon the wellbeing of minority students—or limited. On the latter, I am thinking of the evidence from the vice-president of the National Union of Students, Hillary Gyebi-Ababi, and her explanation of the NUS no-platform policy for six proscribed bodies.
That is vague and subjective. We all think we know what is meant by importance or important, but how often have we read that something is important, when in fact we viewed it as not being so? That is why the concept of mere importance may be deemed to be too low a threshold. I propose to address that by elevating the threshold to one that is more objective and more concrete by using the word “primacy”.
In the oral evidence sessions, Professor Nigel Biggar, the Government’s own witness, addressed the concerns that freedom of speech would take primacy over academic freedom when the duty is balanced in practice. That is what I am seeking to address with my amendment. When asked by my hon. Friend the Member for Kingston upon Hull West and Hessle whether he would recommend that the Bill as written should deal with that imbalance, he replied: “Yes, I would.” That is pretty categoric. Primacy is absolute; that is the important thing. “Importance” is a value term, and that is why we will be pressing for “primacy” to be in the Bill.
Let me turn to amendment 43. Academic freedom and freedom of speech are of course interdependent, but they are also independent concepts. To avoid an imbalance of one in favour of the other, the values of both should be elevated to prime status, recognising the importance of both concepts simultaneously working with each other. That would address the policy objectives outlined by the Government in their Department for Education impact assessment: first, to
“embed principles that enable students, staff and visiting speakers to feel actively encouraged to express, debate and expand their views on campus”
and, secondly, to ensure that
“staff are able to exercise freedom to question and test received wisdom”.
I believe that the two amendments are equally important, establishing primacy versus importance, but also stressing the vital nature of freedom of speech and addressing through this the policy objectives as outlined by the Government’s own Department for Education.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
I thank all the Clerks for the work they have done on the amendments. I
Academic freedom came up from our witnesses time and again. I joked about it, but it is a truth that I managed to unite differing academics with wildly different opinions on many different issues on a single point: they all agreed that academic freedom was important and therefore should be on the face of the Bill. I will not keep the Committee long, but I am going to quote three of them.
Professor Stock “took it as implicit” that academic freedom was included within freedom of speech, but agreed that it was
“a bit confusing that ‘freedom of speech’ is the phrase.”
She went on to say that
“in terms of drafting, that could be clarified.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 12, Q20.]
When I asked whether we should have academic freedom in the Bill, she was supportive of the idea. Dr Ahmed agreed that if academic freedom was to be genuinely protected, it needed to be more explicit in the Bill. That was another of the Government’s witnesses.
Professor Biggar, another of the Government’s witnesses, said that
“academic freedom needs to have equal standing, because free speech and academic freedom are not the same things.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 29, Q54.]
He recommended that the imbalance in the Bill as written—that is, mentioning only freedom of speech—be addressed. He agreed with Taylor Vinters, whose submission has been referred to, that it was
“arguable that freedom of speech would take primacy over academic freedom when the duty is balanced in practice”.
I hope that the Government will listen to their own witnesses who gave evidence on the importance of having both freedom of speech and academic freedom.
Michelle Donelan
The director and the OfS will be publishing their own guidance, and it would not be appropriate for me to pre-empt that. I would, however, expect there to be a reference to academic freedom within that guidance. I hope the Committee is reassured that the Bill strikes the right balance.
Matt Western
I thank my colleagues for their contributions, which flesh out these points. As my right hon. Friend the Member for Hayes and Harlington said, we have approached this Committee in a spirit of co-operation and constructive thought, to try and improve the Bill. As my hon. Friend the Member for Kingston upon Hull West and Hessle said, there was a surprising, perhaps staggering, consensus from the witnesses about the need to clarify the importance of academic freedom, from whichever side we sit on. The Minister may be right that academic freedom technically falls within freedom of speech, but this is a higher education Bill—legislation about higher education—so surely the emphasis must be on how freedom of speech relates to higher education. I urge us as a Committee to stress the importance of academic freedom in the Bill and give real emphasis to it.
Sir John Hayes
I am grateful to the right hon. Gentleman. Like him, I certainly never compromised on what I believe.
On the point that was made—I invite the hon. Gentleman to acknowledge this—these things, generally speaking, are dealt with in guidance, as the Minister said, for the very reason that once the Bill becomes an Act, as we hope it will, and it beds down, we will need to refine precisely how universities interpret it, and the guidance will reflect that continuing work. I therefore think we have got a win in the Minister saying that she would expect the guidance to include that, and we should take that win and move on.
Matt Western
I thank the right hon. Gentleman for that intervention. I genuinely respect him and would like to accept his point. However, I have profound concerns over the direction of the Office for Students and its leadership. He said that generally these things are put in place, but “generally” is not good enough for me, and I do not think it can be for any of us today.
Lloyd Russell-Moyle
Most pre-1984 universities have a reference in their charter to academic freedom as opposed to freedom of speech, and most post-’84 universities have it within their other governing documents. Is it not therefore important that the wording in the Bill reflects those governing documents, or at least ensures a clear dovetail, rather than leaving it ambiguous, which might cause greater problems, particularly if, as we know, the charter is used quite often in employment law and tribunals? These provisions, according to evidence that we heard, need to dovetail better into that process.
Matt Western
My hon. Friend is right. His knowledge and experience in these matters greatly exceed mine, so I thank him for bringing that to the table.
The Minister said that she would expect the guidance to include academic freedom. Again, I cannot accept that “generally” or “expect” is good enough when it is so fundamental, vital and central to the work and role of our higher education institutions and academics. As my hon. Friend said in his intervention, the words “academic freedom” are written into the governance of universities and higher education institutions.
We are here to be constructive. I cannot stress that point enough. We accept that there is a huge majority on the Government side. They can do as they wish, but we are here for the coming four days to be constructive and to try to make the best of what we think is very poor legislation. I wish to press the matter to a vote.
Question put, That the amendment be made.
Matt Western
I beg to move amendment 52, in clause 1, page 1, line 18, after “premises” insert “or online platforms”.
This amendment expands the objective of securing freedom of speech within the law for staff, members, students and visiting speakers to include securing the use of online platforms.
The Chair
With this it will be convenient to discuss the following:
Amendment 31, in clause 1, page 1, line 18, after the second “of” insert “or occupied by”.
This amendment expands the duty on higher education providers to not deny the use of any premises, including premises occupied by the provider, to the staff of the provider, the members of the provider, the students of the provider and visiting speakers.
Amendment 53, in clause 1, page 2, line 6, at end insert—
“(c) The financial cost of providing physical security for any individual or body, except where such a cost would be greatly disproportionate.
(4A) In circumstances where subsection (c) applies, the provider must ensure that an online platform can be used as an alternative.”
This amendment would ensure that the use of premises and the terms on which those premises are used are not limited by financial security costs, save where the costs would be disproportionate. In the event the costs are disproportionate, an alternative online platform has to be found by the provider.
Matt Western
I may be bloodied, but I am unbowed. We press on.
I wish to speak in favour of all the amendments in the group. They seek to expand the free speech duty to online platforms, if that is where a speaker is being posted. This is pretty common-sense stuff, given that the past 18 or 19 months of the covid-19 pandemic have fundamentally changed the nature of teaching and hosting events. All of us in the Committee appreciate that online events have become almost a de facto norm when face-to-face meetings for teaching or other events have not been possible over this past year and a half.
That is the same for higher education settings. As we approach the new academic year, increased numbers of student are arriving on campus, following all the changes made to A-level examinations, placing greater pressures on our universities and higher education institutions to meet higher capacity needs, with real pressures arising where they are unable to, and also to support venues where there is insufficient ventilation. Online is therefore an important part of what happens in higher education, whether we like it or not. Some see it as a progressive change, while others might see it as unwanted, but on balance most would accept that it has enhanced the possibilities of higher education provision.
Amendment 52 reflects the fact that many meetings and events will continue to be held online and would ensure that the same law applying to those held in person on university premises would rightly apply to those held online. Clearly, we cannot and should not create a two-tier system where in-person meetings are required to uphold free speech—and yet people have to jump through hoops to facilitate that—while online meetings go unregulated. Professor Stock believes 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”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 5, Q1.]
I did not necessarily agree with a great deal of what Bryn Harris of the Free Speech Union had to say, but I entirely accept his point that
“There needs to be a joined-up approach between the various instances of reform. The danger is that we end up with an anomaly. For example, Twitter’s house rules under the online safety Bill will have to be consistent with Ofcom codes of practice. There is a danger that something might be perfectly allowable under Twitter’s house rules, but unlawful in some other way.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 82, Q174.]
In fact, the whole Online Safety Bill is a very important part of what we have been discussing in this Bill: it is fundamental to some of the issues faced by academics, students and wider society when it comes to what free speech is.
The DFE’s own impact assessment stated that one of the policy objectives was
“to embed principles that enable students, staff and visiting speakers to feel actively encouraged to express, debate and expand their views on campus and online, within the law”.
In turn, the Regulatory Policy Committee’s review of the impact assessment commented—quite rightly, as this is so important—that
“The IA should discuss how the proposal interacts with other government policies and proposals such as those relating to online harms.”
To address and relate to online harms, beyond the premises where we can have issues—I mentioned Dr Bryn Harris—surely the duty should be extended to the online sphere as well. It seems anomalous for the Government not to wish to incentivise holding online instead of in-person meetings and for them not to accept the amendment. I very much hope that they will see that the amendment introduces a constructive, small detail that aims to improve the legislation in a way highlighted by the impact assessment of the DfE itself. The idea that the online sphere should be included has come from within the Government.
Amendment 53 seeks to build on amendment 52. It would ensure that when the financial costs of hosting speakers were unreasonable and disproportionate, a suitable online platform would have to be provided as an alternative. We have seen over the past year and a half how easily that can be done. Costs are much lower and more people can access the events. It gets around the significant costs of hosting an event.
The truth is that the cancellation of events on campuses has been incredibly rare. Since I assumed this role six months ago, I have been talking to universities and student unions. They have raised certain concerns with me, particularly about when the costs of accommodating a person on campus become prohibitive. Typically, that relates to the security costs of posting that—the security of individuals involved as well as the wider safety of those on campus. There was the case, to which frequent reference has been made, of the former Israeli ambassador, Mark Regev, who was prevented, I believe, from speaking at one university. I think we were talking about a five-figure number for costs. Security costs, whether they are established by the embassy or whether the police deem that a certain level of security is needed for the safety of the speaker and attendees, can be considerable, and I want to come on to that. For student societies, these are significant sums of money—as I said, they can be five-figure sums. When we think of higher education institutions it is all too easy to think of the larger providers where these events are perhaps more typical, but the legislation covers all higher education institutions, many of which have just a few hundred students.
Universities UK produced a report in 2011 entitled “Freedom of speech on campus”, in which it recommended that universities should have someone who was responsible for campus security and who would ensure that those making decisions based on campus security, academic freedom and freedom of speech were all aware of existing legislative duties. It is out there—there should be someone doing that, and they would be there to establish the impact, risk or threat of such an event.
Dr Bryn Harris, in his evidence, said:
“Ideally, what we would see here is an elaboration of what ‘reasonably practicable steps’ means. You could say it shall include a duty to cover such security costs as are necessary to enable an event to take place safely.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 79, Q166.]
While that comment is in relation to proposed new part A1, there is clearly support among Government witnesses for not allowing security costs to impinge on the duty to secure freedom of speech.
Perhaps the inclusion of an upper bar of disproportionate costs is required, because it is not right that costs should never limit the restriction of an event. I believe that that should be determined by each institution—each higher education provider. It should be within their gift to decide what is reasonable with regard to affording security and safety, which is of paramount importance to them as an establishment. Relevant in that regard is the case cited by Bryn Harris of R v. The University of Southampton, in which an administrative court struck out a judicial review claim of the university’s decision to pull an event, given the risks of holding it. Costs were deemed to justify interference with the claimant’s rights. Our amendment would ensure that if in-person events cannot go ahead due to sizeable costs, an online event must be facilitated instead, thereby ensuring that freedom of speech can be exercised. It would also ensure that public safety is paramount.
Amendment 31 addresses the issue of what constitutes premises. We clearly wish to extend the provision to the online forum, but there are still questions to be asked about how that would apply to the myriad premises that universities can occupy under various contractual arrangements. Universities are not uniform places. Trusts may have premises on site, or have other premises that may be used by universities. Private companies may also have facilities and premises that can be used by the university. Going back to the point that we are here in the spirit of trying to improve the legislation, making the change about premises “occupied by” rather than necessarily being owned by a university is an important tweak to the legislation, to ensure that all those sorts of premises are included in the remit of the Bill. It would address the subcontracting and private bodies that are used to facilitate student services, such as the absolute explosion in the private provision of student halls of residence that we are seeing across the country.
Sir John Hayes
I very much welcome the tone that the hon. Member for Warwick and Leamington has adopted this morning, following the advice of his senior colleague—he is senior in so many ways—the right hon. Member for Hayes and Harlington. In particular, the hon. Gentleman made a profoundly important point about the online transmission of information, because of course that is pertinent given the events of the past couple of years. Many universities have taught exclusively online. Seminars and lectures have been provided by that means by necessity. Others have adopted a more flexible approach, and so on.
Nevertheless, mindful of that, I think the hon. Gentleman makes a good point. This is an improvement to the Bill. I had not given it as much consideration as I might have done until I read his amendment and heard him articulate it, but it seems self-evidently an improvement to the spirit and tone of what the Government are hoping to achieve. Far be it for me to teach the Minister to do her job—if I start doing that, I will get chastised by both her and my Whip, no doubt—but this is a very good example of where a Bill can be improved by sensible Opposition amendments. I hope we will have a lot more sensible amendments from them, and no wrecking or destructive ones.
Matt Western
I very much welcome the right hon. Gentleman’s tone, too, and I thank him for it. This is absolutely about trying to do the best. I described the Bill as a bit of a dog’s breakfast. I do not know whether, in his experience, he has had a 17-page Bill to which so many amendments have been tabled, but this is certainly the first time I have come across quite so many per page. I would also welcome the right hon. Gentleman’s comments on amendment 31, which he is perhaps about to move on to.
Sir John Hayes
I am coming to that. The hon. Gentleman anticipates my next contribution—which will be brief, I hasten to add. I think that the point he makes with amendment 31 is also good. He is right that where universities deliver what they do is not a simple matter, not just because of the changes in technology and the way in which they operate, but in other respects as well. There are many premises, many different kinds of operators and many people involved in the university community. That has become increasingly true over time, and again I think the hon. Gentleman makes an extremely reasonable and valid point. I have been inspired by the right hon. Member for Hayes and Harlington to embrace the spirit of collaboration and helpfulness, and I hope that the Minister will do so, too.
Matt Western
I thank those on both sides of the Committee who contributed to the debate. I think where we are coming from is increasingly being understood as constructive. If we were working through this legislation in September 2019, there would be a lot of stuff that we had not imagined would be required. These amendments seek to future-proof what might happen in the future evolution of higher education. Forty years ago, they might have been these fixed, established, campus-based city centre location universities. They had not spread and assumed sites in Singapore or other towns in the UK. They were not renting spaces and they did not have the plethora of private property that there is on campuses today. It was a very different situation. We need to think about how higher education has evolved over the last year and a half and how it will continue to evolve.
As my right hon. Friend the Member for Hayes and Harlington alluded to, mischievous organisations, societies or whatever we want to call them might seek out venues located within a premise or site that they knew would not be within the letter of the law of this legislation. I agree entirely that leaving so much to guidance must be a concern for us all. We are here, as parliamentarians, to make legislation and set policy, and I do not think it is healthy for too much to be left in the remit of, say, one individual, as would be the case with a director for freedom of speech and academic freedom.
I also agree with the point raised by my right hon. Friend the Member for North Durham. I think he was referring to the point that, as was suggested by certain witnesses in our evidence sessions, this guidance will be laid down by a person who is likely to be a political appointee and therefore the way that this guidance is formulated is extremely important. That is why more detail must be included in the legislation; and if that does not happen in this place, I am sure that the House of Lords will seek to do that.
I take on board the Minister’s positive comments, particularly on amendment 53. However, I would like to press amendment 52 to a vote.
Question put, That the amendment be made.
Matt Western
I take the Minister at her word and look forward to being able to work with her. At this point, I do not wish to move the amendment.
Matt Western
I echo the comments of colleagues, who have made the case so well. We have profound concerns about the amendment, I am afraid. We understand what it is trying to do, but it could be very broad if accepted as it is. On Second Reading, the Secretary of State made it crystal clear 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”.—[Official Report, 12 July 2021; Vol. 699, c. 49.]
The amendment could strip out that safeguard of harassment protection. The Minister, too, stressed the point on Second Reading. She said:
“To be absolutely clear, the Bill does not override the existing duties under the Equality Act regarding harassment and unlawful discrimination.”—[Official Report, 12 July 2021; Vol. 699, c. 120.]
We should be very careful about the existing duties, and we need to ensure that they are protected in future as well. That could be a real problem for us, if the Bill is amended.
Professor Stephen Whittle said:
“The Equality Act provides little protection for anybody who feels that their rights are being disturbed by somebody else’s freedom of speech. For example, if somebody is speaking and they are antisemitic, unless it directly relates to that person, unless they have some sort of standing, the Equality Act cannot protect them as such.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 43-44, Q80.]
The Equality Act is already a fairly flimsy tool for interfering with freedom of speech, so I really want to know why the amendment should so brutally cut the legs from under the Act’s harassment provisions. Even Bryn Harris commented:
“I accept that getting into the Equality Act is very controversial and tricky terrain”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 80, Q168.]
I fear the Government’s approach is a bit of a sledgehammer to crack a nut. The concern is about a fundamental change to the Equality Act. As the right hon. Member for South Holland and The Deepings said, universities are trying to do, or should do, the right thing. That is what has always been sought. In one evidence session, Professor Grant referred to the Chicago principles, under which a university can restrict expression that violates the law, that falsely defames a specific individual, or that constitutes a genuine threat or harassment. The amendment would be counter to those principles, which is why we will oppose it.
Michelle Donelan
Amendment 71 seeks to override the law on harassment so that higher education providers would be required to take reasonably practicable steps to secure freedom of speech in scientific or academic discussions, even where that would constitute harassment under the Equality Act 2010. Freedom of speech, which generates rigorous debate and advances understanding, is vital. To uphold freedom of speech in higher education, students, staff and members must be able to express their ideas within the law that may be controversial, unpalatable or even deeply offensive. That is how students develop the ability to think critically, to challenge extremist narratives and to put forward new and controversial ideas.
As is the case now, providers must consider each case on its own facts, and work collaboratively with those involved to ensure that there is an appropriate balance across the range of relevant duties, including in relation to equality protections. It is already the case that, when considering a claim of harassment, courts and tribunals must balance competing rights on the facts of a particular case, which could include the rights of freedom of expression, as set out in article 10, and academic freedom. Guidance has made it clear that the harassment provision within the Equality Act cannot be used to undermine academic freedom. I expect that that will be reiterated in the new Office for Students guidance.
Students’ learning experience may include exposure to course material, discussion or speakers’ views that they find offensive or unacceptable. That is very unlikely to be considered harassment under the Equality Act. Also, if the subject matter of a talk is clear from the material promoting an event, people who attend are very unlikely to succeed in a claim for harassment arising from views expressed by the speaker. At the same time, if speech does constitute harassment, it should not be tolerated, even in the context of academic discussion in higher education. Any form of harassment is abhorrent and unacceptable anywhere in our society, including in universities. It is vital that the Bill makes clear that it protects only lawful free speech. Although I hugely respect my right hon. Friend the Member for South Holland and The Deepings—as, it seems, does the Committee—I must ask the Committee to agree that the amendment is unnecessary. The Bill meaningfully strengthens protections for lawful freedom of speech and academic freedom.
Sir John Hayes
With that hearty recognition of my point, I will happily withdraw the amendment. I take the points that have been made on both sides of the Committee about how vital it is to protect students from all the things that I think we would all regard as fundamentally unacceptable. In the light of the comments from Professor Biggar and others on the need to get the balance right, and with the Minister’s assurances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Matt Western
I beg to move amendment 55, in clause 1, page 2, line 7, at end insert—
“members and visiting academic speakers”
This amendment would ensure that the objective of securing freedom of speech within the law includes securing the academic freedom of members and visiting academic speakers.
The Chair
With this it will be convenient to discuss the following:
Amendment 29, in clause 1, page 2, line 36, at end insert—
“references to “members of the provider” include any affiliated academics and any other person holding an academic position at the provider;”
This amendment widens the definition of academic members to include affiliated academics and other individuals holding academic positions at higher education providers.
Amendment 56, in clause 1, page 2, line 36, at end insert—
‘“visiting academic speaker” shall mean any individual who is an academic member of another registered education provider or equivalent institution or organisation.’
This amendment defines academic visiting speaker.
Matt Western
I am conscious of time so I will not spend too much of it on this. I really hope that amendment 55 is yet another constructive, common-sense tweak to the Bill, to ensure that there is comprehensive coverage of who a member or speaker may be. The amendment would ensure that the protection of academic freedom is provided to academic speakers as well. Many of the events that the legislation covers are most relevant to external speakers, so it should be very clear and obvious that the amendment should be included. If the Government are seeking an end to no-platforming, we need to ensure that existing academic speakers are included in that.
Tom Simpson put it this way in his evidence:
“The coverage of the duty is currently specified as the staff of the provider, members, students and visiting speakers. In academic life, there is a really important category of what you might call affiliated academics”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 67, Q136.]
That is quite obvious. Increasingly, there are many more guest scholars or people on visiting fellowships who are not necessarily members of the university. Currently, the wording does not make it plain that such people would be included, and they need to be.
The issue has also been raised with me by various representative bodies and institutions, and they urge that my amendments 55 and 56, which define a “visiting academic speaker”, be included. The amendments are not controversial; they are common sense, and I hope that they will be adopted by the Government.
Fiona Bruce (Congleton) (Con)
I tabled amendment 29, as other Members have tabled other amendments, on a constructive basis, seeking to improve a Bill that I strongly support.
Amendment 29 would clarify that
“references to “members of the provider”—
that is, the higher academic provider—
“include any affiliated academics and any other person holding an academic position at the provider”.
Why is this important? It is to ensure that those who are undoubtedly intended to be covered by the Bill, such as visiting fellows, research associates, life fellows, guest scholars and emeritus fellows do not fall outside the scope of the Bill’s protection. Many within the higher education sector would not view these categories of affiliated academics as “members”, on the basis of what I understand is a commonly accepted understanding of that word. The simple remedy provided by amendment 29 would be to clarify and broaden the meaning of “members” to include affiliated academics and anyone held to be occupying an academic position within the university.
I will just refer to two remarks from witnesses who gave evidence to the Committee. Associate Professor Tom Simpson told the Committee:
“In academic life, there is a really important category of what you might call affiliated academics—people with visiting fellowships or emeritus professorships, guest scholars or life fellows. The wording does not make it plain that such people would be included.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 67, Q136.]
And Professor Matthew Goodwin told us of academics being “disinvited from workshops”, who I rather think might not necessarily be a member of the higher academic provider, when he said that
“speaking out about issues that go against the monoculture in many of our universities comes with very real consequences, and I know that from the many emails that I have received from junior academics and members of staff at universities who simply feel unable to voice their true views on those issues because they are fearful of what will happen to their careers. Indeed, in some cases—including friends of mine—they have been sacked or disinvited from workshops.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 91, Q185.]
I do not propose to press this amendment to a vote, but I hope that the Minister will confirm in her closing remarks that she will consider taking this matter away for consideration as the Bill progresses through the House.
Michelle Donelan
Importantly, they will be covered by the overarching protections in relation to freedom of speech when they speak at other institutions. As for members, they are specifically covered under proposed new part A1(2). Strasbourg case law has confirmed that, in determining whether speech has an academic element, it is necessary to establish whether the speaker can be considered an academic. To the extent that a member of a university could also come within the category of academic staff will be a question of fact. Quite simply, if they are covered they will have academic freedom as defined in the Bill. I hope that reassures members of the Committee that these amendments are not needed, as the members and types of academics mentioned can already be assured that they will be protected under the Bill.
Matt Western
I am reassured by what the Minister says. It seems there is coverage for visiting academic speakers. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Ordered, That the debate be now adjourned.—(Michael Tomlinson.)
Higher Education (Freedom of Speech) Bill (Third sitting)
Matt Western Excerpts(2 years, 7 months ago)
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The Chair
Good afternoon. We will now hear oral evidence from Professor Eric Kaufmann, professor of politics at Birkbeck College, University of London, and Professor Matthew Goodwin, professor of politics and international relations at the University of Kent.
Matt Western (Warwick and Leamington) (Lab)
Q181 Good afternoon to you both. Thank you for joining us today, and for your submissions. I have several questions to start with. Academic freedom is much referred to, and I have always viewed it as something of a privilege. Perhaps you could describe your definition, and why it has such an important status.
Professor Kaufmann: The right to question received wisdom, the right of academics to question—
The Chair
I am afraid the acoustics in this room are very poor. Do you think that you could speak up as though you were addressing a hall of 500 students?
Professor Kaufmann: I have not done that in a while. The freedom of academics to test and question received wisdom, including public commentary and extramural speech, is how I would define academic freedom. It needs to be protected to a greater extent, perhaps, than in other professions to allow academics really to challenge convention without risking a detriment. The special thing about universities is that you can do that.
Matt Western
Q Is that something that you earn as an academic?
Professor Kaufmann: No, it is something that you have as an academic. It needs to be protected. If it is something that you have to earn, that would suggest that there are two tiers. I think that even a temporary, adjunct academic should have it.
Professor Goodwin: I would agree. I would define academic freedom as the ability to challenge conventional wisdom, to voice unpopular opinions and to go against the grain without suffering adverse consequences from within your institution.
Matt Western
Q This question is for Professor Kaufmann. About 50 years ago, during the Red Lion Square disorders, Warwick University student Kevin Gately was sadly killed in trouble between fascists and a group called Liberation. He was the first person to die in public disorder for 55 years. Does the legislation protect our students of today and tomorrow, to avoid those sorts of confrontations in future?
Professor Kaufmann: I do not think anyone can predict. That is a public order question and the determination of the risk would have to be made by the police, for example. I think this is quite far from the situation that has given rise to the need for the Bill. It is not really a public order Bill; it is much more about protecting the everyday rights of academics to speak out, speak their beliefs and research without detriment. Yes, if there is likely to be some kind of public order incident, the police will have to give advice on that.
Matt Western
Q That protest was about no-platforming, so I think it is related to the legislation—I am not raising a random thing with you. Do you see in the Bill consequences for the future of free speech and hate speech on our campuses?
Professor Kaufmann: The Bill will have a very important effect. Sometimes the point is missed when we focus in on a few incidents of no-platforming. Really, the big, big issue here is the monumental chilling effect that academics feel: in a UCU-sponsored study, 35% of academics—UCU members—said that they felt restricted in saying what they believe. That is 35,000 academics. In a King’s study, 25% of students claim that they will not say what they believe—that is 500,000 people. We are talking about an absolutely massive problem here, and I think it is very important to get that point across. Issues around no-platforming are the tip of a vast iceberg of chilling effects and self-censorship that I believe is distorting the truth-seeking mission of the university. The university has to be a place where we can pursue truths, even if they go against conventions and mores of the time. The no-platforming incidence is really the crux of the issue, which the Bill will address.
Matt Western
Q Professor Goodwin, we have heard a lot about self-censoring. I am not an academic or a scholar of Freud, but he suggested that we all self-censor all the time, so what is the issue here?
Professor Goodwin: I will speak from personal experience to give you an idea. I publicly accepted the vote for Brexit in an environment where only around 10% of academics either supported Brexit or tend to support conservative or right-wing political parties, and that really makes me an outlier. The only reason why I, and colleagues who might hold gender critical views or a more nuanced interpretation of British history, have been able to speak up about some of those issues is because we have often been professors with job security and tenure, and are very difficult to sack.
If you are a junior academic or are on a fixed-term contract, speaking out about issues that go against the monoculture in many of our universities comes with very real consequences, and I know that from the many emails that I have received from junior academics and members of staff at universities who simply feel unable to voice their true views on those issues because they are fearful of what will happen to their careers. Indeed, in some cases—including friends of mine—they have been sacked or disinvited from workshops. As Professor Kaufmann points out, the temptation in this debate is to say, “There are only a few cases. Isn’t this about using a sledgehammer to crack a nut?” When you are looking at rigorous and robust surveys that suggest that one in three academics are self-censoring, that is a very big problem in a country that has long prided itself on having some of the best universities in the world, which are based on viewpoint diversity—being able to challenge, critique and voice unpopular opinions. However, many of my colleagues do not feel able to do that, as you heard last week and as I am sure you will hear this week, as well.
Matt Western
Q Do you not think that we are all outliers in one way or another?
Professor Goodwin: When you look at institutions that lean very heavily in one particular direction— 75%, 80% leaning toward the left of the political spectrum— we know from research that those kinds of monocultures also encourage people to become more radical over time; Cass Sunstein, for example, has written a book about that.
However, we are also dealing with institutions that are responsible for the next generation. I would want my students to disagree with me on a whole range of issues, but I would also want them to be exposed to very different viewpoints throughout their university experience: viewpoints on the left, on the right, from above and from below. Ultimately, that is what gives us the ability to think critically and it strengthens our democracy. At the moment, however, we know clearly from the King’s study—I think you are speaking to the author later— that a quarter of all university students in the UK are self-censoring, which is a very depressing statistic.
Matt Western
Q You have talked of the fear of many left-wing academics of normalisation, whereby giving a platform to fascists and the like would normalise their views. Whether or not their views become normalised, would you be prepared to see an overt fascist speak on your campus and, if so, how do you think that would square with university management’s myriad duties to student welfare and social cohesion?
Professor Goodwin: I can speak from personal experience; I have invited people from across the political spectrum to speak to my students over the years. I have had Conservative, Labour and UK Independence party candidates come to speak to students. I would have invited somebody from the British National party or the National Front, were they available.
Those experiences taught me and demonstrated very clearly that students are more than capable of being exposed to a range of different views and of challenging those views, because ultimately we are here to develop critical thinkers; we are not here to put students in ideological monocultures that only give them one view of the world.
One thing I would say, which I think is a very important point for this Committee, is this: if you look at the United States and at levels of trust in universities in America over the last 10 years, you will see that they have declined significantly, as this debate has become very polarised. The last thing that I think we would want in the UK is to repeat that experience, because people are increasingly looking at higher education institutions as being very political institutions—being very lopsided. It would be a great shame if that were to happen in this country.
Matt Western
Q Professor Kaufmann, I will put a question to you, if I may. In the Policy Exchange report that you co-authored, a very negligible number of academics were ready to support a dismissal campaign; according to my notes, the figure was 12.5%. If so few are willing to support such campaigns, are right-leaning academics’ fears about cancel culture not just a backlash reaction to a general left-leaning academy?
Professor Kaufmann: That is a really good point: very few academics—only about one in 10—are willing to support a given cancel campaign, which is good news.
The problem, in a way, is that all it really takes is only a very small minority of radical activists to get, let us say, an attack on a gender critical feminist. I mean, these are small, tightly organised networks, but they are able to move mountains because nobody necessarily wants to stand up to them.
Most academics are not in favour of this stuff, but they are also scared to stand up to it, because if you stand up to people who are attacking gender critical feminists, you might be labelled as a transphobe. You are not a transphobe, but by critiquing people who claim to be acting for the benefit of the trans community, you fear that that aura will stick to you. What happened at Cambridge, with Arif Ahmed, is instructive. You have heard from him, and essentially he struggled to get 25 signatures of people who were willing to put something to a vote on whether to change the wording of the university’s policy. Once it was put to the vote, it passed by 80%.
There is a lot of reluctance; people do not want to stick their heads above the parapet. That is the issue that we face. I have looked at survey data on this: an academic individual is actually more pro-free speech than a non-academic individual, when you account for their ideology; a far leftist who is not an academic is less supportive of free speech than a far leftist academic.
The issue, however, is that in the university we have such a skew, because most of these claims of coming from the far left. Because they make up 25% to 30% of academic staff in the social sciences and humanities and because they make up a significant share of students, we are going to see a lot more of these challenges to free speech. It is not because academics are any more anti-free speech than non-academics—in fact, it is the reverse. It is just that it is a function of the ideological distribution of academics. That is why we see more of these events in universities.
Matt Western
Q I have a final question for Professor Kaufmann. Why is it that, as you made clear in your October 2020 article for UnHerd, active mobilisation by representative Government is necessary to reverse critical race theory’s grip on elite institutions? Is not a softer approach more desirable?
Professor Kaufmann: On critical race theory?
Matt Western
Yes.
Professor Kaufmann: I never endorsed any Government action on critical race theory in universities—only in schools where the teaching is compulsory and you have to pass the element. In a university, it absolutely should be taught; people are free to take it and to teach it. It is a different thing: you are dealing with adults. In a school where every pupil has to be taught critical race theory, we have a compelled speech issue, a freedom of conscience issue.
I think critical race theory is a conspiracy theory. I am quite open about that. However, there is high critical race theory, which is interesting, is worth teaching and has some insights. The vulgar critical race theory that is appearing in schools and some diversity training, where they separate pupils by race and say that some are oppressors and some are oppressed, is nonsense. However, in a university classroom, people are free to take what they want and teach what they want. In schools, where we are not dealing with adults and it is compulsory, there is a freedom of conscience issue. I make that distinction very clearly.
The Minister for Universities (Michelle Donelan)
Q Thank you both for coming in. Professor Kaufmann, in the Policy Exchange paper you co-authored you recommended a statutory tort. I wanted to ask you why you think that that is so important, and how you think it will work in conjunction with the Office for Students complaints scheme.
Professor Kaufmann: It is important for academics who might find themselves in a situation in which they are disciplined for speech to have recourse against their institution if that institution is not upholding their rights to freedom of speech. The point of the statutory tort is simply to allow an avenue for those with grievances that cannot be met within their institutions. Very often, I am sad to say, many institutions are not doing a successful job of upholding this right for many academics —hence the need for recourse to the court system.
Matt Western
Q Thank you, Mr Katwala, for joining us today. I want to ask you a few questions. You have put on record your concern about this Bill opening up universities and student unions to being sued an unlimited number of times by people such as David Irving. Could you expand on those concerns?
Sunder Katwala: The underlying thought is that the legitimate concern of the Bill is to protect academic freedom expansively, to symbolically reinforce that that is the case, and to provide new mechanisms to deal with disputes. Everybody who is interested in academic freedom would say that it is in law and we should be protecting it, and that is being driven by the fear that there is overcreep from the side that wants to take away academic freedom. In terms of how you implement that, if you say, “Let’s defend lawful speech because lawful speech is free speech, and lawful speech is academic freedom,” that sounds very good, as long as you can answer the question: is all lawful speech something we want to defend as academic freedom, or are there categories of lawful speech that we do not want to defend?
Most racist and antisemitic speech does not meet the legal threshold of being unlawful. Intimidation and violence are unlawful, and other forms of stirring up are unlawful, but holocaust denial is not unlawful. We may wish to stigmatise it—we would not want it on our charity board or in our political parties, but different institutions have different rules. In this case, what are the principles and categories by which we might say that there is a form of lawful speech that we should not be protecting under academic freedom because it is inimical to academic freedom? That is the tension.
For example, if the Government say to universities that they should adopt the International Holocaust Remembrance Alliance definition of antisemitism, that is an important thing to do for antisemitism. There are two reasons to do that: one is symbolism—antisemitism is bad—and the other is to prohibit on campus speech that is currently lawful but also antisemitic. Comparing the Israeli Government to Nazi Germany, for example, is a lawful position that we wish to stigmatise. If you have this measure and the IHRA definition, you have potential tension at the boundary between the lawful speech that you are trying to exclude and the lawful speech that you are trying to protect.
Matt Western
Q Briefly, what sort of impact do you think this is going to have on student unions?
Sunder Katwala: With student unions, it is there to push back against not inviting, disinviting or protesting against someone whose political views you do not share. Wide boundaries are good, but are the boundaries of lawful speech exactly the boundaries you want to protect as academic freedom, or are there some hard cases? I will come on to this, but I think there are probably three different sets of hard cases where the boundary gets complicated.
Matt Western
Q You said you can imagine cases of hypothetically cancelled speakers claiming or pursuing hypothetically lost fees. Will you explain that further, and what amendments would you like to be made to the legislation in order to combat it?
Sunder Katwala: What I am not clear about at this stage concerning the legislation, the principles, the operationalisation and so on is how far these things are going to be broadly symbolic—so that they are just there—or how far it goes. What are the damages? If I am disinvited because I am David Irving—I have published a book and then I was disinvited because people read the High Court judgment—what is the material loss to David Irving? I suspect that it is quite small, but we do not know. That is the level of detail that the legislation does not take us to.
Matt Western
Q Could that include reputational damage?
Sunder Katwala: Yes. Mr Irving has a very low reputation, because the High Court has said what it said about him, so him not being allowed to proceed with his event at the University of Cambridge and so on would add to the reprehensible reputation of a man with an already low reputation. There might be other cases in which somebody loses significant amounts of reputation by being cancelled for the first time. This is a level of operational detail that, obviously, I do not think that the legislation is designed to get to. What are the scales of these kinds of interventions?
Matt Western
Q I am interested in your view of how this will interface with the proposed online harms Bill. Do you have any thoughts on that?
Sunder Katwala: The online harms Bill has the opposite principle—again, it is a good principle—which is that there is some lawful speech that is reprehensible and we wish to stigmatise it, even though it is lawful. The example that I put to one of the social media platforms was, “No blacks in the England team—keep our team white.” It is lawful, reprehensible racist speech. It is also within the rules of Twitter, Facebook and Instagram at the moment, and they are embarrassed about that and looking into it. I feel that an event at a student union, “No blacks in the England team—keep our team white,” does not seem to be the kind of event that we want to protect, and yet that is lawful but reprehensible speech, which we want to stigmatise, even though it is free speech within the law.
If I sit in my living room or go to the pub and say, “Marcus Rashford isn’t English—keep our team white,” I am not breaking the law. I might be if I put it on the internet in particular ways, but I am not in that case—I have not hit the threshold for racist abuse. If I sent it to him with the wrong kind of epithets, maybe I would. This is a question of wide boundaries for sure, but are there hard cases for how far those boundaries go?
Matt Western
Q You heard the previous session. There was a lot of talk from the previous two witnesses about self-censoring and so on. Do you share those concerns, or do you think, as I was perhaps suggesting, that we all self-censor to a certain extent? As we heard from a witness last week, that is just the way of the world—you get on with it and you make your case.
Sunder Katwala: The harder question about self-censorship is: what will these mechanisms do about self-censorship? They might change the culture in a very positive way, because everyone feels reinforced and is not worried about stigmatisation, but they might change the culture in a rather negative way, where everyone is bringing cases and counter-cases against each other, and the processes, the punishment, could get worse if we have a lot of tit-for-tat things. There might be something in the culture of a regulator about the treatment of, say, vexatious cases as opposed to substantive cases, which might be quite important if the stress actually comes from the possibility of the cases. Because self-censorship and chilling effects are cultural points, it is not obvious to me that we know how these mechanisms affect that broader cultural plane.
Michelle Donelan
Q Your recent research suggests that more divisive voices and controversial issues are often amplified online. Do you agree that that influences how freely the majority of people feel able to express themselves?
Sunder Katwala: On the whole, in terms of the British public and the general population, these current issues of free speech and academic freedom are important issues in our political and media culture and so on; they are not gripping the broad public. It is a much less heated and polarised debate about these issues in Britain than in the United States of America. It might be the case that in five, 10 or 15 years, we have a much more heightened culture, but there is a very broad balance, a middle, in British society. When we have engaged in conversations about the worry about people being called racist before they have been racist, but also about wanting decent debates about race and integration that do not cross boundaries, a great many people are trying to strike those balances in a way that is good for freedom of speech but has boundaries.
A lot of people think political correctness can go too far if you take it too far, but they will then say, “But it had a point in the first place.” To give an example, research by More in Common found that seven out of 10 people in this county think that political correctness can be a problem if you overapply it, overreach with it and go for trivia. Seven out of 10 people think that hate speech can be a problem, because we are letting too much go. The median person in Britain thinks that both those things are true. At the same time, they are probably frustrated that we are removing episodes of “Fawlty Towers” from archives. It is entirely trivial, while we are letting neo-Nazi content run riot on Facebook. There is awareness of this tension, and frustration that you could overreach in different directions.
What is much more the case in America is that people have picked a side. Therefore, they are always on one side of every question. We definitely have the possibility of having that culture among the most politically engaged—the people who spend most of their time on the internet, and perhaps the people who write the most newspaper columns—but most people are quite frustrated with that, because they would see that there are good public goals here that might be complicated to get right.
The Chair
Q We now welcome Nicola Dandridge, who is the chief executive of the Office for Students. Will you tell us a bit about what that is? What is the Office for Students?
Nicola Dandridge: We are the independent regulator for higher education in England. We have been up and running since 2018.
Matt Western
Q Thank you for joining us today, Ms Dandridge. Just looking through the legislation, I have a few points to make. It does not seem to be particularly clear about the future relationship between the Office for Students and the Office of the Independent Adjudicator. Is that clear to you from the Bill? Perhaps you will explain how it could work.
Nicola Dandridge: We work collaboratively with a whole range of organisations, including the OIA and other regulators. The way to make that work is to have discussions with them, to make sure that there is clarity about responsibilities and who does what, and that that is clear between ourselves and to universities, colleges and students. I am a stakeholder, so I anticipate that exactly the same will happen here. The new director for freedom of speech and academic freedom will speak with the OIA to resolve who does what and how we can make sure that that is as clear as possible to staff, students and everyone who is interested in this area of activity.
Matt Western
Q Can you imagine situations in which one body might go to the OIA and another to the OfS, and how that might be reconciled?
Nicola Dandridge: That is exactly the sort of thing that we need to make clear. I do not see that that is an insuperable problem. We just need to make sure that we have sorted it out and that there is clarity for everyone involved.
Matt Western
Q You mentioned the director for freedom of speech and academic freedom and the appointment process. I guess I have certain concerns about how the chair of the OfS was appointed. How do you imagine—it is not clear from the Bill—the director for freedom of speech and academic freedom will be appointed? Should how that will come about be included in the Bill? As we have heard in previous sessions, there are concerns—across the House, depending on which Government are in place—so who should be involved in that appointment? I assume that you would want to be involved, for example. Maybe you should have the ultimate say. Do you have any thoughts about that, and should it be included in the Bill?
Nicola Dandridge: I anticipate that the process will follow the usual public appointments process and be conducted by the DFE. That is probably a question you need to put to the DFE. It is unlikely to be a decision taken in-house by the Office for Students.
Matt Western
Q Do you have any thoughts on the skills that that person might need?
Nicola Dandridge: They will need to believe in the importance of freedom of speech and academic freedom, as the OfS and all of us do. That goes without saying. In this debate, I have been interested to hear that they should be a lawyer. Undoubtedly, I think a legal background would be helpful, but I really do not think that being a lawyer is essential. It is not as if we are going to lock the director up in a room somewhere with no access to any of our existing resource. We have a very talented legal team already, who will provide considerable advice and support to the director. So I do not think that being a lawyer is essential, but I do think that having a legal background might help, but absolutely not determinative of who is appointed.
Matt Western
Q Have you had any conversations with the current chair or the DFE about what the scale of the department—it will not be just one individual; it will be the director of freedom of speech plus X people working within the department—will be, what the cost will be and how that will be funded? Would the OfS need an additional budget?
Secondly, do you have concerns about what will happen for universities and student unions? One of the points that came out from the BEIS report, which you may have seen, is what significant costs there will be for universities and student unions, which clearly, after the past 18 months, are really struggling financially anyway.
Nicola Dandridge: It is very difficult at this stage to predict what the pressures on the Office for Students will be as a consequence of the proposals, but certainly the complaints system is likely to generate quite a lot of work. It is really important that we have the capacity to deal with that properly without compromising our important work on quality and standards, and access and participation. This is an area that we will be keen to discuss with Government to ensure that we are properly resourced to do this work well in all its complexity, without compromising our other work.
Michelle Donelan
Q Thank you for attending, Ms Dandridge. When considering the impact that the new director could have, we can look at the impact that the director for fair access and participation has had. Could you outline the positive impact that you think having somebody solely responsible for that area has had?
Nicola Dandridge: In my view, and I think the view of many others, the role of the director for fair access and participation has been really significant in setting expectations, driving through the importance of what is also a very complex agenda, engaging in discussions with universities, students and student unions, and speaking publicly about the importance of access and participation. I think the impact that the director has had has been really significant, and it is a good analogy for the impact that we hope the director for freedom of speech and academic freedom will have similarly.
Higher Education (Freedom of Speech) Bill (Fourth sitting)
Matt Western Excerpts(2 years, 7 months ago)
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The Chair
We will now hear evidence from Professor Paul Layzell, principal of Royal Holloway, University of London, and chair of the Universities UK advisory group on free speech and academic freedom, and from Professor Jonathan Grant, professor of public policy at King’s College London, who is joining us remotely via Zoom. We have until 6 o’clock for this session.
I ask the witnesses to please introduce yourselves for the record. Professor Layzell, will you start?
Professor Layzell: I am Professor Paul Layzell. I am principal of Royal Holloway, University of London, but I am here in my capacity as a board member of Universities UK and chair of the working group on freedom of speech.
Professor Grant: Good afternoon. I am Professor Jonathan Grant, professor of public policy at King’s College, London. I used to be vice-principal for service, where I had some responsibility for the operationalisation around freedom of speech, although I should stress that today I am speaking in a personal capacity.
Matt Western (Warwick and Leamington) (Lab)
Q257 Thank you, and welcome to the Committee. We really appreciate you joining us today, Professor Layzell and Professor Grant.
Given all the pressures and issues that universities are facing, is this Bill a priority for the higher education- sector? I put that question to Professor Layzell first.
Professor Layzell: Freedom of speech is a priority for the sector. It is an absolutely integral and fundamental part of what we are about. I cannot imagine that there is a vice-chancellor or board in the country that would not want to promote freedom of speech. As your previous witness said, there have been issues, and I think we recognise the commitment to bring forward legislation. For the universities sector, it must be proportionate and help to deal with complex situations. Vice-chancellors and their senior teams are concerned about the interplay of this legislation and other legislation. I think we have made some recommendations in our submission about ministerial statements that make clear the position of this legislation with respect to other duties. In addition, if the Office for Students was encouraged to work with us, we could work with it to develop a code of practice based on case studies and examples of dealing not with the straightforward freedom of speech issues that are often cited, but with situations where a number of issues come together. If that helps decision making and brings transparency and clarity, it is welcome.
Matt Western
Q Do you think a tighter code of practice and guidelines from the OfS, maybe along the lines of the Chicago principles, could have achieved what you have just described, or do you think it needed something like a tort and this legislation?
Professor Layzell: I think that that would have gone a long way towards achieving the situation I have just described, but there are other things in the Bill on complaints systems and the requirement to positively promote freedom of speech that I do not think anybody in the sector would have a problem with.
Professor Grant: To answer your first question, I think it is somewhat overkill. That would be my overall assessment, but I think it conflates a number of issues, so it is a slightly more nuanced response. On the elements around cancel culture, when you look at the data it is very rare that events are cancelled or people get no-platformed. I have concerns around the chilling effect, which I heard previous witnesses talk about, but I wonder whether regulation is the way to address those concerns. There are elements that could do damage, but overall I am reasonably neutral about the Bill, albeit slightly cynical about whether it will achieve its objectives.
Matt Western
Q There is a lot of colourful language used such as “icebergs” and “extreme crisis”. How do you think the views of students compare with those of wider society when it comes to freedom of speech?
Professor Grant: We know from the survey that we did a couple of years ago, where we went out and asked students exactly those questions, that 81% of students support free speech, 81% of students support a version of the Chicago principles, and the vast majority of students think that free speech is more likely to be challenged in broader society than in their universities, so the idea that students do not buy into the concept of free speech is an absolute red herring, in my view. As I said, that survey also demonstrated some quite worrying statistics around the concept of a chilling effect where people are self-censoring themselves in classrooms.
That for me is where the issue is. It is not about the process of inviting people on to campus and worrying about no-platforming and cancel culture. The data there says that it is a non-issue. If we could move our conversation from that issue on to the chilling effect and how we have a more open culture on campus where people of different views feel confident in expressing them, I think that would be a much more useful conversation.
Matt Western
Q Professor Layzell, many people have voiced concerns regarding the legislation as drafted. We heard from a witness last week, a lawyer, who really feared where it would take us in terms of litigation, and what will happen on university campuses, in student unions and so on. In your experience, given your position, can universities really afford the scale of the burden of bureaucracy, and the potential financial cost, of some of the claims that might get dragged into from certain speakers?
Professor Layzell: The first point to make is that it is important that the legal options that are being presented in the Bill do not cut across the existing mechanisms. There are plenty of mechanisms within universities to deal with complaints internally. There is other apparatus around employment tribunals and the Office of the Independent Adjudicator for Higher Education. Of course, we have the proposed OfS complaints scheme, so there is a lot of apparatus there.
What we want is something that ends up being proportionate and manageable. In our written submission, we suggested that there be a mechanism to prevent frivolous and vexatious claims. Completing internal processes, which we would be quite happy to operate, should be a condition before going to law. We would also recommend that the scope was limited to those who were directly affected by alleged breaches of freedom of speech. Our worry is that the apparatus gets used for other purposes. If it is framed carefully, we could avoid that. That is the thing that we would not want to waste our time on.
Matt Western
Q Do you think that academic freedom needs stronger definition?
Professor Layzell: I think the definition is fine. We have the concept of academic freedom of speech within the law already. This puts a nuance on it, but I think we are quite happy with the definition as it is.
Mr Kevan Jones (North Durham) (Lab)
Q The problem with the Bill as it is written is that there is no stipulation that, per your very sensible suggestion, people would have to go through the internal complaints process first, which is the usual thing for ombudsmen and anything else. If we are not careful, we could end up with people resorting straight to law if they want to make a political point. That is going to cost the universities a lot. In some cases, they will settle just to get rid of them.
Professor Layzell: That is why you would want the full internal and existing apparatus to be fully utilised before we go into that final stage.
The Chair
Q We will now hear oral evidence from Danny Stone MBE, director of the Antisemitism Policy Trust, and Hillary Gyebi-Ababio, vice-president for higher education at the National Union of Students. We have until 6.45 pm for this session. I ask the witnesses to introduce themselves for the record.
Hillary Gyebi-Ababio: Thank you again for having me. I am Hillary Gyebi-Ababio, the vice-president for higher education at the National Union of Students, representing students here today.
Danny Stone: I am Danny Stone, the chief executive of the Antisemitism Policy Trust.
Matt Western
Q Thank you both for coming along this evening, and for the evidence that you submitted in advance. May I ask a couple of questions of you, Hillary, first? Perhaps then I can turn to you, Danny. Just out of interest, Hillary, what are the current issues on campus among student unions? What are the priorities that you are facing?
Hillary Gyebi-Ababio: There is a plethora of issues that student unions are facing and that students are talking about right now, from mental health, which is a really serious issue that continues to pervade higher education, to funding and students not having enough money for accommodation and to live at university. Sexual violence is still prevalent on our campuses, and students are really going through it without enough support orenough measures for justice. Those are just a few, to not take up too much time. Students are going through a lot on campus right now, and seriously need solutions to problems that they are experiencing on the ground.
Matt Western
Q Student unions are feeding back to me that they are struggling financially. The past year and a half has been pretty tough. Incomes are right down, wherever they may be getting them from—some may be directly on campus, through facilities and so on. You may have seen that it is estimated that it will cost almost £800,000 a year for all SUs to sign off and distribute the codes of practice. How do you think that will go down with student unions? What impact will it have?
Hillary Gyebi-Ababio: I think that will have a massive hit on student unions. For information, student unions are often funded through negotiations with parent institutions. That is how they get the bulk of their funding. Especially over the pandemic, student unions have been subject to so much lost from not being able to run their commercial services. Often student unions have bars, shops or discounted outlets for students to shop at and experience student life. Student unions, as a collective, spending almost £1 million every single year trying to abide by the Bill will reduce what they can do, at the root of it, which will stop them doing the already fantastic work that they do, facilitating events and a student life that is worth having, and representing students on all the issues that I spoke about earlier.
Matt Western
Q We just heard from Professor Grant of King’s College London, who said that we have a very good system in place to address speech issues at events on campus. Do you find that currently it is working generally pretty well? Other than KCL, do you have any other examples where you know the process has been working?
Hillary Gyebi-Ababio: I think it is commonplace that student unions and universities work together when it comes to events, to approving external speakers, and to ensuring that freedom of speech is facilitated on campus. You only have to look at the NSU calendar to see the wide range of events that are constantly going on, often led by students. A lot of that is facilitated by close relationships with universities. If there is an area on which universities and students work closely, it is that. There are measures in place; there are quite detailed ways that free speech is facilitated on campus through the partnership between student unions and universities. I think they are doing a good job in making that work. Where they need to improve, they are constantly eager to work together to do that.
Matt Western
Q Do you have concerns about some of our smaller higher education institutes? It is very easy to think about the big names, because they are the ones that always come up in the media, but in my few months in this role, I have begun to realise the scale of HE institutions that are covered. How do you think this will affect the hundreds of smaller institutions?
Hillary Gyebi-Ababio: I think that is a really important question. If I am being completely honest, a lot of stuff in the Bill is really, really concerning, such as measures under which people could get monetary sanctions for breaches of freedom of speech. Not only will that involve lots of bureaucracy for universities and student unions to make sure they are complying with the Bill, but it will take away from their ability to freely and fairly facilitate freedom of speech on campus.
Those smaller institutions are often places where students try to share their views, beliefs and experiences in a really tight-knit way in quite close communities. The Bill runs the risk of making those specific institutions—alongside the whole sector—much more risk averse in running events and facilitating freedom of speech, simply because they cannot bear the amount that the Bill would put on them, in addition to the fact that they already have internal processes on which they have worked hard for years and years. We are really concerned about that and about the impact the Bill will have on such institutions, as well as on larger institutions and student unions.
Matt Western
Q Thank you. Danny, can you give us an overview of the current landscape of our universities and campuses? I am interested to hear specifically about the situation with regard to antisemitism. Can you give a flavour on that?
Danny Stone: Sure, and thank you for having me today. We have data: the Community Security Trust, which records antisemitic incident figures, reported that there were 58 university incidents in 2018-19, including four assaults; 65 incidents in 2019-20, including two assaults; and 109 incidents in 2020-21. We know that in May, issues occurred in universities where there had not previously been issues. Certainly, some of the abuse has moved online, and the Union of Jewish Students in particular has reported online abuse.
On the issue of speakers, which I suppose is of particular interest to the Committee, the CST reported that from 2018 to 2020, 15 speakers who had some association with antisemitism or had made antisemitic remarks in the past came on to campus. As a former officer of the Union of Jewish Students, I dealt with some of those cases. In 2005, at SOAS—the School of Oriental and African Studies—a speaker said:
“I’m not going to say whether it is right or not to burn down a synagogue, I can see that it is a rational act”.
Somebody who came to Oxford had actually been barred from entering the UK and was broadcast in. They had been barred because of their views on terrorism. In 2017, after the passing of the Equalities Act 2010, a speaker said:
“Zionists should be treated like Nazis”.
The point is that people are coming on to campus and expressing antisemitic views. The concern is that those impacts are being properly considered and that they do not get additional protections. As the trust, we have a couple of recommendations for the Bill, including that the codes of practice that are drawn up and the complaints scheme appropriately address the complexities around legal harms and freedom of speech, which Sunder Katwala pointed out to you.
Matt Western
Q Finally, other legislation is quite clear in how it addresses and balances competing freedoms, but there is seemingly no such balance in this legislation. Can you expand on the importance of balancing competing freedoms on campus, particularly in a higher education setting?
Danny Stone: I learnt a lot about the balancing of freedoms from a guy called Ray Hill. He was a far-right mole who talked to me about the importance of not always shutting down debate. His experience of working with young people, particularly on the far right, was that opportunities to ask difficult questions and raise difficult issues should not be shut down. Equally, he acknowledged the harms caused by some people who express particular views in harmful ways.
This has been addressed in the higher education sector. Malcolm Grant did a report in 2010 in which he talked about trying to promote freedom of speech while understanding its limits. He said that universities need to balance the competing interests and might reach
“different but equally legitimate conclusions about the same matters.”
The Prevent guidance that followed talked about freedom of speech and moral obligations to address harms. We have seen it in Government guidance from 2008 about free speech, which said that everyone can be safe and not intimidated at university.
In fact, the human rights memorandum for this Bill says that there will be competing freedoms, but it suggests leaving it to the end point: the universities. You have heard from people today who say, “Well, the universities aren’t getting it right.” My view is that it should be on the face of the Bill, per the Online Safety Bill, the Joint Committee on which I appeared before the other day. Recognition of the complexities and the competing freedoms would be welcome.
Michelle Donelan
Q Danny, you have previously raised concerns about a lack of consistency in the duties on higher education providers, in that they do not apply to student unions—something that this Bill would correct. Do you think that it is important that we do that?
Danny Stone: In terms of student unions? Absolutely. Again, if we are talking about complexities, there was a move to essentially prohibit the Jewish society at the University of Essex from becoming a society. That was unacceptable, and I believe it was reversed in the end. Similarly, there have been moves in the past to ban Jewish societies, and I was involved in campaigning against a motion at the University of Manchester that essentially would have done that.
On the flip side, there are front groups such as Hizb ut-Tahrir, which is not a proscribed organisation, that will seek to set up on campus, and there are far-right organisations that will seek to set up student societies on campus. That presents me with real concern. Could they potentially appeal and try to get money and find a route through? Yes, they might. There is a complexity in this which I would like to see recognised in the Bill. I would like to see something about the competing freedoms that exist.
Lloyd Russell-Moyle
As I mentioned in the previous sitting, I am a trustee at the University of Bradford union, I receive money from the University of Sussex to provide educational opportunities to its students, and I have received support from the University and College Union.
Matt Western
My wife works at a higher education provider.
Ordered, That further consideration be now adjourned. —(Michael Tomlinson.)
Adjourned till Wednesday 15 September at twenty-five minutes past Nine o’clock.
Higher Education (Freedom of Speech) Bill (Third sitting)
Matt Western Excerpts(2 years, 7 months ago)
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The Chair
Good afternoon. We will now hear oral evidence from Professor Eric Kaufmann, professor of politics at Birkbeck College, University of London, and Professor Matthew Goodwin, professor of politics and international relations at the University of Kent.
Matt Western (Warwick and Leamington) (Lab)
Q
Professor Kaufmann: The right to question received wisdom, the right of academics to question—
The Chair
I am afraid the acoustics in this room are very poor. Do you think that you could speak up as though you were addressing a hall of 500 students?
Professor Kaufmann: I have not done that in a while. The freedom of academics to test and question received wisdom, including public commentary and extramural speech, is how I would define academic freedom. It needs to be protected to a greater extent, perhaps, than in other professions to allow academics really to challenge convention without risking a detriment. The special thing about universities is that you can do that.
Matt Western
Q
Professor Kaufmann: No, it is something that you have as an academic. It needs to be protected. If it is something that you have to earn, that would suggest that there are two tiers. I think that even a temporary, adjunct academic should have it.
Professor Goodwin: I would agree. I would define academic freedom as the ability to challenge conventional wisdom, to voice unpopular opinions and to go against the grain without suffering adverse consequences from within your institution.
Matt Western
Q
Professor Kaufmann: I do not think anyone can predict. That is a public order question and the determination of the risk would have to be made by the police, for example. I think this is quite far from the situation that has given rise to the need for the Bill. It is not really a public order Bill; it is much more about protecting the everyday rights of academics to speak out, speak their beliefs and research without detriment. Yes, if there is likely to be some kind of public order incident, the police will have to give advice on that.
Matt Western
Q
Professor Kaufmann: The Bill will have a very important effect. Sometimes the point is missed when we focus in on a few incidents of no-platforming. Really, the big, big issue here is the monumental chilling effect that academics feel: in a UCU-sponsored study, 35% of academics—UCU members—said that they felt restricted in saying what they believe. That is 35,000 academics. In a King’s study, 25% of students claim that they will not say what they believe—that is 500,000 people. We are talking about an absolutely massive problem here, and I think it is very important to get that point across. Issues around no-platforming are the tip of a vast iceberg of chilling effects and self-censorship that I believe is distorting the truth-seeking mission of the university. The university has to be a place where we can pursue truths, even if they go against conventions and mores of the time. The no-platforming incidence is really the crux of the issue, which the Bill will address.
Matt Western
Q
Professor Goodwin: I will speak from personal experience to give you an idea. I publicly accepted the vote for Brexit in an environment where only around 10% of academics either supported Brexit or tend to support conservative or right-wing political parties, and that really makes me an outlier. The only reason why I, and colleagues who might hold gender critical views or a more nuanced interpretation of British history, have been able to speak up about some of those issues is because we have often been professors with job security and tenure, and are very difficult to sack.
If you are a junior academic or are on a fixed-term contract, speaking out about issues that go against the monoculture in many of our universities comes with very real consequences, and I know that from the many emails that I have received from junior academics and members of staff at universities who simply feel unable to voice their true views on those issues because they are fearful of what will happen to their careers. Indeed, in some cases—including friends of mine—they have been sacked or disinvited from workshops. As Professor Kaufmann points out, the temptation in this debate is to say, “There are only a few cases. Isn’t this about using a sledgehammer to crack a nut?” When you are looking at rigorous and robust surveys that suggest that one in three academics are self-censoring, that is a very big problem in a country that has long prided itself on having some of the best universities in the world, which are based on viewpoint diversity—being able to challenge, critique and voice unpopular opinions. However, many of my colleagues do not feel able to do that, as you heard last week and as I am sure you will hear this week, as well.
Matt Western
Q
Professor Goodwin: When you look at institutions that lean very heavily in one particular direction— 75%, 80% leaning toward the left of the political spectrum— we know from research that those kinds of monocultures also encourage people to become more radical over time; Cass Sunstein, for example, has written a book about that.
However, we are also dealing with institutions that are responsible for the next generation. I would want my students to disagree with me on a whole range of issues, but I would also want them to be exposed to very different viewpoints throughout their university experience: viewpoints on the left, on the right, from above and from below. Ultimately, that is what gives us the ability to think critically and it strengthens our democracy. At the moment, however, we know clearly from the King’s study—I think you are speaking to the author later— that a quarter of all university students in the UK are self-censoring, which is a very depressing statistic.
Matt Western
Q
Professor Goodwin: I can speak from personal experience; I have invited people from across the political spectrum to speak to my students over the years. I have had Conservative, Labour and UK Independence party candidates come to speak to students. I would have invited somebody from the British National party or the National Front, were they available.
Those experiences taught me and demonstrated very clearly that students are more than capable of being exposed to a range of different views and of challenging those views, because ultimately we are here to develop critical thinkers; we are not here to put students in ideological monocultures that only give them one view of the world.
One thing I would say, which I think is a very important point for this Committee, is this: if you look at the United States and at levels of trust in universities in America over the last 10 years, you will see that they have declined significantly, as this debate has become very polarised. The last thing that I think we would want in the UK is to repeat that experience, because people are increasingly looking at higher education institutions as being very political institutions—being very lopsided. It would be a great shame if that were to happen in this country.
Matt Western
Q
Professor Kaufmann: That is a really good point: very few academics—only about one in 10—are willing to support a given cancel campaign, which is good news.
The problem, in a way, is that all it really takes is only a very small minority of radical activists to get, let us say, an attack on a gender critical feminist. I mean, these are small, tightly organised networks, but they are able to move mountains because nobody necessarily wants to stand up to them.
Most academics are not in favour of this stuff, but they are also scared to stand up to it, because if you stand up to people who are attacking gender critical feminists, you might be labelled as a transphobe. You are not a transphobe, but by critiquing people who claim to be acting for the benefit of the trans community, you fear that that aura will stick to you. What happened at Cambridge, with Arif Ahmed, is instructive. You have heard from him, and essentially he struggled to get 25 signatures of people who were willing to put something to a vote on whether to change the wording of the university’s policy. Once it was put to the vote, it passed by 80%.
There is a lot of reluctance; people do not want to stick their heads above the parapet. That is the issue that we face. I have looked at survey data on this: an academic individual is actually more pro-free speech than a non-academic individual, when you account for their ideology; a far leftist who is not an academic is less supportive of free speech than a far leftist academic.
The issue, however, is that in the university we have such a skew, because most of these claims of coming from the far left. Because they make up 25% to 30% of academic staff in the social sciences and humanities and because they make up a significant share of students, we are going to see a lot more of these challenges to free speech. It is not because academics are any more anti-free speech than non-academics—in fact, it is the reverse. It is just that it is a function of the ideological distribution of academics. That is why we see more of these events in universities.
Matt Western
Q
Professor Kaufmann: On critical race theory?
Matt Western
Yes.
Professor Kaufmann: I never endorsed any Government action on critical race theory in universities—only in schools where the teaching is compulsory and you have to pass the element. In a university, it absolutely should be taught; people are free to take it and to teach it. It is a different thing: you are dealing with adults. In a school where every pupil has to be taught critical race theory, we have a compelled speech issue, a freedom of conscience issue.
I think critical race theory is a conspiracy theory. I am quite open about that. However, there is high critical race theory, which is interesting, is worth teaching and has some insights. The vulgar critical race theory that is appearing in schools and some diversity training, where they separate pupils by race and say that some are oppressors and some are oppressed, is nonsense. However, in a university classroom, people are free to take what they want and teach what they want. In schools, where we are not dealing with adults and it is compulsory, there is a freedom of conscience issue. I make that distinction very clearly.
The Minister for Universities (Michelle Donelan)
Q
Professor Kaufmann: It is important for academics who might find themselves in a situation in which they are disciplined for speech to have recourse against their institution if that institution is not upholding their rights to freedom of speech. The point of the statutory tort is simply to allow an avenue for those with grievances that cannot be met within their institutions. Very often, I am sad to say, many institutions are not doing a successful job of upholding this right for many academics —hence the need for recourse to the court system.
Matt Western
Q
Sunder Katwala: The underlying thought is that the legitimate concern of the Bill is to protect academic freedom expansively, to symbolically reinforce that that is the case, and to provide new mechanisms to deal with disputes. Everybody who is interested in academic freedom would say that it is in law and we should be protecting it, and that is being driven by the fear that there is overcreep from the side that wants to take away academic freedom. In terms of how you implement that, if you say, “Let’s defend lawful speech because lawful speech is free speech, and lawful speech is academic freedom,” that sounds very good, as long as you can answer the question: is all lawful speech something we want to defend as academic freedom, or are there categories of lawful speech that we do not want to defend?
Most racist and antisemitic speech does not meet the legal threshold of being unlawful. Intimidation and violence are unlawful, and other forms of stirring up are unlawful, but holocaust denial is not unlawful. We may wish to stigmatise it—we would not want it on our charity board or in our political parties, but different institutions have different rules. In this case, what are the principles and categories by which we might say that there is a form of lawful speech that we should not be protecting under academic freedom because it is inimical to academic freedom? That is the tension.
For example, if the Government say to universities that they should adopt the International Holocaust Remembrance Alliance definition of antisemitism, that is an important thing to do for antisemitism. There are two reasons to do that: one is symbolism—antisemitism is bad—and the other is to prohibit on campus speech that is currently lawful but also antisemitic. Comparing the Israeli Government to Nazi Germany, for example, is a lawful position that we wish to stigmatise. If you have this measure and the IHRA definition, you have potential tension at the boundary between the lawful speech that you are trying to exclude and the lawful speech that you are trying to protect.
Matt Western
Q
Sunder Katwala: With student unions, it is there to push back against not inviting, disinviting or protesting against someone whose political views you do not share. Wide boundaries are good, but are the boundaries of lawful speech exactly the boundaries you want to protect as academic freedom, or are there some hard cases? I will come on to this, but I think there are probably three different sets of hard cases where the boundary gets complicated.
Matt Western
Q
Sunder Katwala: What I am not clear about at this stage concerning the legislation, the principles, the operationalisation and so on is how far these things are going to be broadly symbolic—so that they are just there—or how far it goes. What are the damages? If I am disinvited because I am David Irving—I have published a book and then I was disinvited because people read the High Court judgment—what is the material loss to David Irving? I suspect that it is quite small, but we do not know. That is the level of detail that the legislation does not take us to.
Matt Western
Q
Sunder Katwala: Yes. Mr Irving has a very low reputation, because the High Court has said what it said about him, so him not being allowed to proceed with his event at the University of Cambridge and so on would add to the reprehensible reputation of a man with an already low reputation. There might be other cases in which somebody loses significant amounts of reputation by being cancelled for the first time. This is a level of operational detail that, obviously, I do not think that the legislation is designed to get to. What are the scales of these kinds of interventions?
Matt Western
Q
Sunder Katwala: The online harms Bill has the opposite principle—again, it is a good principle—which is that there is some lawful speech that is reprehensible and we wish to stigmatise it, even though it is lawful. The example that I put to one of the social media platforms was, “No blacks in the England team—keep our team white.” It is lawful, reprehensible racist speech. It is also within the rules of Twitter, Facebook and Instagram at the moment, and they are embarrassed about that and looking into it. I feel that an event at a student union, “No blacks in the England team—keep our team white,” does not seem to be the kind of event that we want to protect, and yet that is lawful but reprehensible speech, which we want to stigmatise, even though it is free speech within the law.
If I sit in my living room or go to the pub and say, “Marcus Rashford isn’t English—keep our team white,” I am not breaking the law. I might be if I put it on the internet in particular ways, but I am not in that case—I have not hit the threshold for racist abuse. If I sent it to him with the wrong kind of epithets, maybe I would. This is a question of wide boundaries for sure, but are there hard cases for how far those boundaries go?
Matt Western
Q
Sunder Katwala: The harder question about self-censorship is: what will these mechanisms do about self-censorship? They might change the culture in a very positive way, because everyone feels reinforced and is not worried about stigmatisation, but they might change the culture in a rather negative way, where everyone is bringing cases and counter-cases against each other, and the processes, the punishment, could get worse if we have a lot of tit-for-tat things. There might be something in the culture of a regulator about the treatment of, say, vexatious cases as opposed to substantive cases, which might be quite important if the stress actually comes from the possibility of the cases. Because self-censorship and chilling effects are cultural points, it is not obvious to me that we know how these mechanisms affect that broader cultural plane.
Michelle Donelan
Q
Sunder Katwala: On the whole, in terms of the British public and the general population, these current issues of free speech and academic freedom are important issues in our political and media culture and so on; they are not gripping the broad public. It is a much less heated and polarised debate about these issues in Britain than in the United States of America. It might be the case that in five, 10 or 15 years, we have a much more heightened culture, but there is a very broad balance, a middle, in British society. When we have engaged in conversations about the worry about people being called racist before they have been racist, but also about wanting decent debates about race and integration that do not cross boundaries, a great many people are trying to strike those balances in a way that is good for freedom of speech but has boundaries.
A lot of people think political correctness can go too far if you take it too far, but they will then say, “But it had a point in the first place.” To give an example, research by More in Common found that seven out of 10 people in this county think that political correctness can be a problem if you overapply it, overreach with it and go for trivia. Seven out of 10 people think that hate speech can be a problem, because we are letting too much go. The median person in Britain thinks that both those things are true. At the same time, they are probably frustrated that we are removing episodes of “Fawlty Towers” from archives. It is entirely trivial, while we are letting neo-Nazi content run riot on Facebook. There is awareness of this tension, and frustration that you could overreach in different directions.
What is much more the case in America is that people have picked a side. Therefore, they are always on one side of every question. We definitely have the possibility of having that culture among the most politically engaged—the people who spend most of their time on the internet, and perhaps the people who write the most newspaper columns—but most people are quite frustrated with that, because they would see that there are good public goals here that might be complicated to get right.
The Chair
Q
Nicola Dandridge: We are the independent regulator for higher education in England. We have been up and running since 2018.
Matt Western
Q
Nicola Dandridge: We work collaboratively with a whole range of organisations, including the OIA and other regulators. The way to make that work is to have discussions with them, to make sure that there is clarity about responsibilities and who does what, and that that is clear between ourselves and to universities, colleges and students. I am a stakeholder, so I anticipate that exactly the same will happen here. The new director for freedom of speech and academic freedom will speak with the OIA to resolve who does what and how we can make sure that that is as clear as possible to staff, students and everyone who is interested in this area of activity.
Matt Western
Q
Nicola Dandridge: That is exactly the sort of thing that we need to make clear. I do not see that that is an insuperable problem. We just need to make sure that we have sorted it out and that there is clarity for everyone involved.
Matt Western
Q
Nicola Dandridge: I anticipate that the process will follow the usual public appointments process and be conducted by the DFE. That is probably a question you need to put to the DFE. It is unlikely to be a decision taken in-house by the Office for Students.
Matt Western
Q
Nicola Dandridge: They will need to believe in the importance of freedom of speech and academic freedom, as the OfS and all of us do. That goes without saying. In this debate, I have been interested to hear that they should be a lawyer. Undoubtedly, I think a legal background would be helpful, but I really do not think that being a lawyer is essential. It is not as if we are going to lock the director up in a room somewhere with no access to any of our existing resource. We have a very talented legal team already, who will provide considerable advice and support to the director. So I do not think that being a lawyer is essential, but I do think that having a legal background might help, but absolutely not determinative of who is appointed.
Matt Western
Q
Secondly, do you have concerns about what will happen for universities and student unions? One of the points that came out from the BEIS report, which you may have seen, is what significant costs there will be for universities and student unions, which clearly, after the past 18 months, are really struggling financially anyway.
Nicola Dandridge: It is very difficult at this stage to predict what the pressures on the Office for Students will be as a consequence of the proposals, but certainly the complaints system is likely to generate quite a lot of work. It is really important that we have the capacity to deal with that properly without compromising our important work on quality and standards, and access and participation. This is an area that we will be keen to discuss with Government to ensure that we are properly resourced to do this work well in all its complexity, without compromising our other work.
Michelle Donelan
Q
Nicola Dandridge: In my view, and I think the view of many others, the role of the director for fair access and participation has been really significant in setting expectations, driving through the importance of what is also a very complex agenda, engaging in discussions with universities, students and student unions, and speaking publicly about the importance of access and participation. I think the impact that the director has had has been really significant, and it is a good analogy for the impact that we hope the director for freedom of speech and academic freedom will have similarly.
Higher Education (Freedom of Speech) Bill (Fourth sitting)
Matt Western Excerpts(2 years, 7 months ago)
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The Chair
We will now hear evidence from Professor Paul Layzell, principal of Royal Holloway, University of London, and chair of the Universities UK advisory group on free speech and academic freedom, and from Professor Jonathan Grant, professor of public policy at King’s College London, who is joining us remotely via Zoom. We have until 6 o’clock for this session.
I ask the witnesses to please introduce yourselves for the record. Professor Layzell, will you start?
Professor Layzell: I am Professor Paul Layzell. I am principal of Royal Holloway, University of London, but I am here in my capacity as a board member of Universities UK and chair of the working group on freedom of speech.
Professor Grant: Good afternoon. I am Professor Jonathan Grant, professor of public policy at King’s College, London. I used to be vice-principal for service, where I had some responsibility for the operationalisation around freedom of speech, although I should stress that today I am speaking in a personal capacity.
Matt Western (Warwick and Leamington) (Lab)
Q
Given all the pressures and issues that universities are facing, is this Bill a priority for the higher education- sector? I put that question to Professor Layzell first.
Professor Layzell: Freedom of speech is a priority for the sector. It is an absolutely integral and fundamental part of what we are about. I cannot imagine that there is a vice-chancellor or board in the country that would not want to promote freedom of speech. As your previous witness said, there have been issues, and I think we recognise the commitment to bring forward legislation. For the universities sector, it must be proportionate and help to deal with complex situations. Vice-chancellors and their senior teams are concerned about the interplay of this legislation and other legislation. I think we have made some recommendations in our submission about ministerial statements that make clear the position of this legislation with respect to other duties. In addition, if the Office for Students was encouraged to work with us, we could work with it to develop a code of practice based on case studies and examples of dealing not with the straightforward freedom of speech issues that are often cited, but with situations where a number of issues come together. If that helps decision making and brings transparency and clarity, it is welcome.
Matt Western
Q
Professor Layzell: I think that that would have gone a long way towards achieving the situation I have just described, but there are other things in the Bill on complaints systems and the requirement to positively promote freedom of speech that I do not think anybody in the sector would have a problem with.
Professor Grant: To answer your first question, I think it is somewhat overkill. That would be my overall assessment, but I think it conflates a number of issues, so it is a slightly more nuanced response. On the elements around cancel culture, when you look at the data it is very rare that events are cancelled or people get no-platformed. I have concerns around the chilling effect, which I heard previous witnesses talk about, but I wonder whether regulation is the way to address those concerns. There are elements that could do damage, but overall I am reasonably neutral about the Bill, albeit slightly cynical about whether it will achieve its objectives.
Matt Western
Q
Professor Grant: We know from the survey that we did a couple of years ago, where we went out and asked students exactly those questions, that 81% of students support free speech, 81% of students support a version of the Chicago principles, and the vast majority of students think that free speech is more likely to be challenged in broader society than in their universities, so the idea that students do not buy into the concept of free speech is an absolute red herring, in my view. As I said, that survey also demonstrated some quite worrying statistics around the concept of a chilling effect where people are self-censoring themselves in classrooms.
That for me is where the issue is. It is not about the process of inviting people on to campus and worrying about no-platforming and cancel culture. The data there says that it is a non-issue. If we could move our conversation from that issue on to the chilling effect and how we have a more open culture on campus where people of different views feel confident in expressing them, I think that would be a much more useful conversation.
Matt Western
Q
Professor Layzell: The first point to make is that it is important that the legal options that are being presented in the Bill do not cut across the existing mechanisms. There are plenty of mechanisms within universities to deal with complaints internally. There is other apparatus around employment tribunals and the Office of the Independent Adjudicator for Higher Education. Of course, we have the proposed OfS complaints scheme, so there is a lot of apparatus there.
What we want is something that ends up being proportionate and manageable. In our written submission, we suggested that there be a mechanism to prevent frivolous and vexatious claims. Completing internal processes, which we would be quite happy to operate, should be a condition before going to law. We would also recommend that the scope was limited to those who were directly affected by alleged breaches of freedom of speech. Our worry is that the apparatus gets used for other purposes. If it is framed carefully, we could avoid that. That is the thing that we would not want to waste our time on.
Matt Western
Q
Professor Layzell: I think the definition is fine. We have the concept of academic freedom of speech within the law already. This puts a nuance on it, but I think we are quite happy with the definition as it is.
Mr Kevan Jones (North Durham) (Lab)
Q
Professor Layzell: That is why you would want the full internal and existing apparatus to be fully utilised before we go into that final stage.
The Chair
Q
Hillary Gyebi-Ababio: Thank you again for having me. I am Hillary Gyebi-Ababio, the vice-president for higher education at the National Union of Students, representing students here today.
Danny Stone: I am Danny Stone, the chief executive of the Antisemitism Policy Trust.
Matt Western
Q
Hillary Gyebi-Ababio: There is a plethora of issues that student unions are facing and that students are talking about right now, from mental health, which is a really serious issue that continues to pervade higher education, to funding and students not having enough money for accommodation and to live at university. Sexual violence is still prevalent on our campuses, and students are really going through it without enough support orenough measures for justice. Those are just a few, to not take up too much time. Students are going through a lot on campus right now, and seriously need solutions to problems that they are experiencing on the ground.
Matt Western
Q
Hillary Gyebi-Ababio: I think that will have a massive hit on student unions. For information, student unions are often funded through negotiations with parent institutions. That is how they get the bulk of their funding. Especially over the pandemic, student unions have been subject to so much lost from not being able to run their commercial services. Often student unions have bars, shops or discounted outlets for students to shop at and experience student life. Student unions, as a collective, spending almost £1 million every single year trying to abide by the Bill will reduce what they can do, at the root of it, which will stop them doing the already fantastic work that they do, facilitating events and a student life that is worth having, and representing students on all the issues that I spoke about earlier.
Matt Western
Q
Hillary Gyebi-Ababio: I think it is commonplace that student unions and universities work together when it comes to events, to approving external speakers, and to ensuring that freedom of speech is facilitated on campus. You only have to look at the NSU calendar to see the wide range of events that are constantly going on, often led by students. A lot of that is facilitated by close relationships with universities. If there is an area on which universities and students work closely, it is that. There are measures in place; there are quite detailed ways that free speech is facilitated on campus through the partnership between student unions and universities. I think they are doing a good job in making that work. Where they need to improve, they are constantly eager to work together to do that.
Matt Western
Q
Hillary Gyebi-Ababio: I think that is a really important question. If I am being completely honest, a lot of stuff in the Bill is really, really concerning, such as measures under which people could get monetary sanctions for breaches of freedom of speech. Not only will that involve lots of bureaucracy for universities and student unions to make sure they are complying with the Bill, but it will take away from their ability to freely and fairly facilitate freedom of speech on campus.
Those smaller institutions are often places where students try to share their views, beliefs and experiences in a really tight-knit way in quite close communities. The Bill runs the risk of making those specific institutions—alongside the whole sector—much more risk averse in running events and facilitating freedom of speech, simply because they cannot bear the amount that the Bill would put on them, in addition to the fact that they already have internal processes on which they have worked hard for years and years. We are really concerned about that and about the impact the Bill will have on such institutions, as well as on larger institutions and student unions.
Matt Western
Q
Danny Stone: Sure, and thank you for having me today. We have data: the Community Security Trust, which records antisemitic incident figures, reported that there were 58 university incidents in 2018-19, including four assaults; 65 incidents in 2019-20, including two assaults; and 109 incidents in 2020-21. We know that in May, issues occurred in universities where there had not previously been issues. Certainly, some of the abuse has moved online, and the Union of Jewish Students in particular has reported online abuse.
On the issue of speakers, which I suppose is of particular interest to the Committee, the CST reported that from 2018 to 2020, 15 speakers who had some association with antisemitism or had made antisemitic remarks in the past came on to campus. As a former officer of the Union of Jewish Students, I dealt with some of those cases. In 2005, at SOAS—the School of Oriental and African Studies—a speaker said:
“I’m not going to say whether it is right or not to burn down a synagogue, I can see that it is a rational act”.
Somebody who came to Oxford had actually been barred from entering the UK and was broadcast in. They had been barred because of their views on terrorism. In 2017, after the passing of the Equalities Act 2010, a speaker said:
“Zionists should be treated like Nazis”.
The point is that people are coming on to campus and expressing antisemitic views. The concern is that those impacts are being properly considered and that they do not get additional protections. As the trust, we have a couple of recommendations for the Bill, including that the codes of practice that are drawn up and the complaints scheme appropriately address the complexities around legal harms and freedom of speech, which Sunder Katwala pointed out to you.
Matt Western
Q
Danny Stone: I learnt a lot about the balancing of freedoms from a guy called Ray Hill. He was a far-right mole who talked to me about the importance of not always shutting down debate. His experience of working with young people, particularly on the far right, was that opportunities to ask difficult questions and raise difficult issues should not be shut down. Equally, he acknowledged the harms caused by some people who express particular views in harmful ways.
This has been addressed in the higher education sector. Malcolm Grant did a report in 2010 in which he talked about trying to promote freedom of speech while understanding its limits. He said that universities need to balance the competing interests and might reach
“different but equally legitimate conclusions about the same matters.”
The Prevent guidance that followed talked about freedom of speech and moral obligations to address harms. We have seen it in Government guidance from 2008 about free speech, which said that everyone can be safe and not intimidated at university.
In fact, the human rights memorandum for this Bill says that there will be competing freedoms, but it suggests leaving it to the end point: the universities. You have heard from people today who say, “Well, the universities aren’t getting it right.” My view is that it should be on the face of the Bill, per the Online Safety Bill, the Joint Committee on which I appeared before the other day. Recognition of the complexities and the competing freedoms would be welcome.
Michelle Donelan
Q
Danny Stone: In terms of student unions? Absolutely. Again, if we are talking about complexities, there was a move to essentially prohibit the Jewish society at the University of Essex from becoming a society. That was unacceptable, and I believe it was reversed in the end. Similarly, there have been moves in the past to ban Jewish societies, and I was involved in campaigning against a motion at the University of Manchester that essentially would have done that.
On the flip side, there are front groups such as Hizb ut-Tahrir, which is not a proscribed organisation, that will seek to set up on campus, and there are far-right organisations that will seek to set up student societies on campus. That presents me with real concern. Could they potentially appeal and try to get money and find a route through? Yes, they might. There is a complexity in this which I would like to see recognised in the Bill. I would like to see something about the competing freedoms that exist.
Lloyd Russell-Moyle
As I mentioned in the previous sitting, I am a trustee at the University of Bradford union, I receive money from the University of Sussex to provide educational opportunities to its students, and I have received support from the University and College Union.
Matt Western
My wife works at a higher education provider.
Ordered, That further consideration be now adjourned. —(Michael Tomlinson.)
Higher Education (Freedom of Speech) Bill (First sitting)
Matt Western Excerpts(2 years, 7 months ago)
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The Chair
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.
Matt Western (Warwick and Leamington) (Lab)
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.
Matt Western
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.
Matt Western
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.
Matt Western
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.
Matt Western
Q To pick up on your point that universities could improve, or the University of Sussex—
Professor Stock: I would rather not talk just about Sussex. It is a general problem.
Matt Western
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.
Mr Kevan Jones (North Durham) (Lab)
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—
Mr Richard Holden (North West Durham) (Con)
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.
Matt Western
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.
Matt Western
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.
Matt Western
Q He would be responsible for the appointment of the director of free speech. Would you have absolute faith in that?
Dr Ahmed: There is no evidence that I am aware of that there would be any problems with the appointments process.
Charlotte Nichols
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.
The Chair
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.
Matt Western
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.
Matt Western
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.
Matt Western
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.
Michelle Donelan
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.
Higher Education (Freedom of Speech) Bill (Second sitting)
Matt Western Excerpts(2 years, 7 months ago)
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The Chair
We are now sitting in public, and the proceedings are being broadcast. We will hear oral evidence from Professor Stephen Whittle, Professor of Equalities Law at Manchester Metropolitan University, who is joining us remotely via Zoom. We have until 2.45 pm for this session.
Professor Whittle, welcome. I am Judith Cummins, and I am chairing this session. Would you please introduce yourself for the record?
Professor Whittle: My name is Stephen Whittle, Professor of Equalities Law at Manchester Metropolitan University. I have worked at Manchester Metropolitan University since 1993, and I have taken an extensive interest in transgender equality issues all my academic career.
Matt Western (Warwick and Leamington) (Lab)
Q71 Thank you very much for joining us, Professor Whittle, and for your written submission. I want to start by making a few points. Looking through your submission, I was interested in what you said about trans rights and the trans rights group Press for Change. You said:
“Trans academics have mostly tried really hard not to accuse, and certainly not to ‘no platform’ anybody. Yet these voices are making trans people look like the extremists. Sadly, it will have the effect of shutting down the debate.”
You have spoken about the challenges of living as an openly trans man. If the Bill gets passed into law, allowing anti-trans campaigners the right to speak on campus, what effect do you think that will have on anti-trans campaigners’ speech on campus?
Professor Whittle: It is important to state from the beginning that I am totally for people having the opportunity to speak and voice their opinions on campus— particularly academics, as long as they base their presentations on their research, work, experience and knowledge. I have absolutely no hesitation about acknowledging that right. My main concern about the legislation is not so much the lack of ability for people who do not believe in trans rights in the same way that I do to have the opportunity to speak. On the whole, people who present a valued and evaluated opinion have had many opportunities to speak on campuses, as well as in the media. The problem is that the way it is presented at the moment is that protesters, or people who disagree with their point of view, are putting what is often termed a chilling effect on academics and their freedom of speech.
I have been speaking about trans rights for a very long time—nearly 30 years—and, as an activist for nearly 50 years, I have spoken in many different forums, run many events and had many challenges to that right to speak and to express those opinions, not just in the UK but worldwide. I have run conferences that have been threatened by Christian activists and so on and so forth.
I have even been in my own lecture theatre and had students stand up and heckle me and accuse me of being the worst parent on earth who ought to have my children removed from me etc. To respond by saying that those people do not have a right to say that is not the correct way forward. We have to have the conversations. I absolutely believe in having the conversations. Being persistent and willing to have the conversations over the years has ultimately led to many legal changes that have been positive for the trans community.
What has happened has been a hypersensitivity. Politicians, academics and external speakers have always faced hecklers, barracking and external protesters. I think about Leon Brittan coming to Manchester University. He would never have spoken at a university ever again if he had felt that that was the only experience of academia. Those protests were a long time ago. He carried on speaking, and that is exactly what we do. I always take the view that you engage. If there have been serious threats to a conference or event that I have been organising, I have made it ticket only. I find that charging £5 to £10 focuses people’s minds on whether they really want to spend the money to get in and barrack at something.
I have organised protests outside events myself but that has never been to close down the conversation. It has been to express an alternative point of view—to say, “Here are many voices who disagree with the voice inside.” The very first time I ever took part in action was probably 1974 at Bradford University, invading a British Medical Association conference, where a doctor was going to speak who definitely thought trans people should not have treatment. He chose to leave the platform. What we asked for was to have a speaker who presented an alternative point of view.
My main concern about the Bill is that it will provide an additional chilling effect overall, not to speakers but to potential protesters. It will result in people who want to express an alternative viewpoint, who are not speakers and do not have that opportunity to participate in the event, to have a voice on the platform, having no way of expressing that without appearing to challenge somebody’s right to free speech. As I say, I absolutely believe in freedom of speech, in expressing opinions and having conversations, but the conversation has to be inclusive of everybody. If we exclude any one group by making them a potential wrongdoer, we are going to close down those conversations.
Matt Western
Q If I understand correctly, you are saying that it is possible within the institutions of universities to resolve this; that we need open debate; that this should be allowed; that academics welcome this. Perhaps the actions of certain activists are making things difficult and that should be dealt with through separate legislation. Do I understand that you believe the Bill is not necessary?
Professor Whittle: Absolutely. I have never ever felt so unsafe that I was not able to speak. I have never felt that I could not run an event because it was so unsafe. I have never felt that my speakers are threatened. I recognise student protest for what it is—student protest. It is a right to express a viewpoint, and I have often provided capacity for that protest to take place so that we are not shutting it down but listening.
Matt Western
Q Moving on, I understand you faced many challenges over a long period of time, as you just articulated. How do you define academic freedom, and how do you perceive the relationship between academic freedom and freedom of speech?
Professor Whittle: Academic freedom is always problematic, because we are always in a situation where some opinions are considered so off the wall and out of the water that we really do not feel that this thing should be voiced within academia. We can think of far right movements and extreme left movements. They connect extremist Christian views and extremist Islamic views, and we have to sit and make a reasonable judgment about what is acceptable. Is it acceptable to have somebody who espouses views that I might consider extremely fascist or Nazi views within a university setting? I would say probably not, but we have to have the conversation and assess what that speaker is saying. If, for example, somebody who clearly denies the holocaust wishes to speak at a university, I would think that was not acceptable. There are certain historical facts that are sacrosanct and you cannot say that they do not exist, unless you have extremely good evidence to the alternative. It is always a balance—looking at what we consider as a society to be acceptable speech within the notion of freedom of speech and academic freedom.
Within academic freedom, I have a curriculum that I teach and that I speak to, but I have a certain freedom within that to reflect the research of myself and my peers through the classes that I give. However, if I sat in a classroom and was talking about black civil rights movements of the 1950s and then started giving parts of the speeches of anti-civil rights campaigners at that time, I would have to think very carefully about how I did that. For example, I remember reading from a speech by Enoch Powell many years ago and a student complained. Basically she had not been awake properly and listened to the fact that I said, “These are not views I agree with. These are the views of a politician at the time, and these were the views that were publicised in the paper and these were the views that caused X consequence.” Fortunately, somebody had tape-recorded the lecture and it was all there. I have to be able to decide when and when not to say those things.
I have never felt that I have to be so careful of student views. There are some issues, for example—sexual assault, rape, female genital mutilation—where I thought very, very carefully about what I would show, what I would say and what I would present, but I have always taught those subject areas because that is part of my academic freedom, and no amount of students saying, “I feel offended by that” or “I am upset by that” will stop that being taught. I have had colleagues say, “Do you think that is the right thing to teach?” and I have had to defend it and say, “Absolutely. My job is to educate the whole student body in this area of law and this is what I will do, but I will not be doing this and I will not be doing that. I will be doing the other.” So it is about judgment and what we feel. One of the sad things that I have really found upsetting about this debate is the number of academics who have felt personally unsafe where I think they probably do not need to, because what they have to say—if they have the evidence and they have done the work—will be listened to. It may not be agreed with—there may be students outside shouting at the door, disagreeing with them—but that is part of the process of academia.
Matt Western
Q To make one final point in terms of what you were just describing: we heard from a couple of academics this morning, I do not know if you listened in—
Professor Whittle: I have been in hospital for the last couple of days so I have been a bit out of it.
Matt Western
Well, thank you for joining us in those circumstances. Professor Stock from Sussex University said she felt that perhaps the university did not promote her enough in terms of her freedom of speech. Do you feel like you do get promoted by Manchester Metropolitan University? The second point she made was that there could be some improvements to current processes on campus; can you suggest any that would obviate the need for this Bill?
Professor Whittle: I have never personally felt that Manchester Metropolitan has not supported me in what I have done, what I have organised or the events that we have had, some of which have been potentially quite contentious. For example, we have had gender critical feminists and trans activists speaking at the same event. The university has always been supportive.
I do not think that universities do enough to promote what we do, to either our student body or to the external world. I often think it is a great shame that we do not get the message out about what our academics are talking about to a wider group than just my department, for example. There must be a better way than sending out a bland email to everybody saying X event is taking place—which most people will then delete. It is thinking about how we want to promote the events that take place; about how we could do that through calendars, through doing more public events, where we invite the public in to listen to what we do and the conversations that we have. That is really important because, the fact is that we have very serious discussions. We often have multidisciplinary and interdisciplinary groups having extremely important conversations about the way we consider the world that we want and how we might live in it. However, in order to do that we have to have the support of the university, in the sense that it believes that we are public-facing and student-facing—we are not little isolated islands within little isolated faculties. There is not a sense, for example, even within the university budget that there is money to promote anything. You have always got to dip into your own budgets. Things like that—the idea that universities really think about looking outwards—would be a really positive change.
Sir John Hayes (South Holland and The Deepings) (Con)
Q I am interested to hear your view that, essentially, this is a Bill that is not addressing a problem, because the evidence we have received, both in writing and verbally earlier today, suggests the opposite; academics were saying that it is indeed a problem. They claimed that criticism of the Bill by saying what you have said today is, and I quote, “not true.” There is empirical evidence that the freedom to speak and research of a significant minority of university students and teachers is being inhibited. Specifically, in the summer of 2017, at Bath Spa university, research into transgender detransitioning was prohibited on the grounds that it was politically incorrect. There is in other universities, and in the minds of other academics, a problem. How do you explain that?
Professor Whittle: At that time there was clearly a media scare about the power of transgender activists and about the rights of transgender people. I read the research proposal of that particular piece and I looked at why it was not approved. I do not think that I would have approved it for my university, because it was not sufficiently sound. It was not sufficiently based on preliminary research. I think it had a political motivation, which I would not expect from any of my students; I would expect a certain level of objectivity from them.
I looked at that quite closely, thinking, “Have Bath made a big mistake here?” but I think what happened was that their decision to refuse to go ahead with that research at that time became a media story that they had refused because the transgender world would attack them for accepting it. Good research has been done on the question of young people and whether they would continue to transition or would detransition—a lot, in fact—and I have never known anyone else have their research stopped, but that was not sound. When you read it, it did not feel as if it was a good piece of research. Maybe had Bath addressed it properly, they could have done more to say, “This needs sorting and this does before we will consider it.”
Smita Jamdar: Hello. My name is Smita Jamdar and I am a partner and head of education at Shakespeare Martineau. I am here in my capacity as an adviser to a number of universities, over many years.
Matt Western
Under the Register of Members’ Financial Interests, I declare that my wife works at a university. I am not sure if it is necessary to declare that, but I want to put it on the record for this session.
Mr Kevan Jones (North Durham) (Lab)
Chair, this morning it was said that hon. Members have to declare their interests every time they speak. My understanding, and that of the right hon. Member for South Holland and The Deepings (Sir John Hayes), was that as long as the interest is declared at the beginning of the session that should be enough. Have the rules changed or are the right hon. Member and I just being old fuddy-duddies?
Matt Western
Q Thank you for joining us today, Ms Jamdar. One of the areas I want to explore with you is around the tort. There seem to be widespread concerns about what this will mean and the implications it will have for universities and student unions. In an article published in Times Higher Education in May 2021, you wrote that the
“introduction of the statutory tort will almost certainly involve universities in more legal action”.
Could you briefly expand on the consequences, both intended and unintended?
Smita Jamdar: As I understand it, the tort is designed to enable people who feel that their right to freedom of speech, as defined in the legislation, has been infringed to go to court and argue their cases. The reason why I fear that could have a number of consequences, not all of them intended, is that in order to issue a case before court you simply have to pay an issue fee, in most cases, write the particulars of claim and set it out, so you set out your case. It then locks both parties into a set of proceedings. Ultimately, you can cut those proceedings short, so you can apply to the court to have a case struck out, but that nevertheless involves a certain amount of time, expense and resource in dealing with the litigation.
In relation to the statutory tort, there is not any threshold level of harm that anyone has to show. Ultimately, for a remedy, any tort requires some form of damages, but that would not necessarily stop people from bringing claims simply to make the point. Especially where the threshold of harm is very small, it could be brought in the small claims court, where no costs are recoverable by either party. On one analysis, you would say that is at least a level playing field, but again it could mean that a few thousand pounds in every case could be spent getting rid of claims that are either very trivial or unmeritorious generally. That is the concern.
Mr Kevan Jones
Q You cover the issues of frivolous and vexatious, and even they will cost some money, but if you get individuals who are well financed this could lead to a lot of expense for the universities.
This morning, my right hon. Friend the Member for Hayes and Harlington (John McDonnell) raised the issue of Chinese students. We all—or I do and at least one other person in Committee does—know about the United Front activities of the Communist party on campuses throughout the UK. Sometimes they are intimidating students, and they are pushing an agenda—for example, on the Uyghurs in China—that is pro the Chinese regime. Under the Bill, I fear that that could be opened up, as my right hon. Friend raised this morning.
A group of students could on the face of it just be students, but they might have financing behind them that we and other people do not know about so that they could pursue a freedom of speech claim to push an agenda that might, for example, be in the interests of the Chinese Government. That would not only involve a lot of cost, but would clearly be financed by some very deep pockets, so it could lead not only to that agenda being pushed but to a lot of expense for the universities. Do you agree with that?
Smita Jamdar: The legislation obviously covers freedom of speech within the law, so as long as what these people were purporting to want to speak about was within the law—or at least arguably within the law, because obviously one of the things that you might wish to have the court adjudicate on is whether the speech was within the law—I cannot see anything that would stop that kind of funded litigation. Ultimately, you can try to seek clarification about where money has come from to fund litigation, but there are always ways of passing money through so that it comes from the pockets of the claimants in the first instance. So, yes, we would not necessarily know who was funding the litigation, or to what end. Ultimately, the question for the court to decide would be: was it an infringement of freedom of speech within the law?
Matt Western
Q To pursue this a little further, you and others have been talking about getting into a compensation culture—we might have the equivalent of ambulance chasers going around chasing, whether through social media or on campus. You are obviously very familiar with the legislation and I think you are the first lawyer we have had so far as a witness. Is it clear to you how this would work with the tort and how, when a complainant wishes to pursue some damages, that will work through the complex relationships between the three bodies involved? We will have the Office for Students, the Office of the Independent Adjudicator for Higher Education and the Charity Commission. That looks like a minefield and super-complex—a lawyer’s goldmine. What do you think?
Smita Jamdar: There is definitely a lot of complexity here about the different roles that these bodies will play and the different routes that somebody could go through to get compensation. The Charity Commission, for example, would not normally be involved in making decisions about compensation for individual complainants; it would be looking more at whether the body in question had complied with the charity law obligations. But the other three, under the model that we have seen in the Bill, could all be involved.
Without a great deal of clarity about the relative responsibilities or indeed the pecking order—there is a rule that you cannot go to the OIA, and I think under the Bill you could not use the OfS free speech complaints process without first exhausting the internal processes of the university to challenge the decision that you are unhappy about. However, there is no such restriction when you go to court. You are free to go to court when you feel that your rights have been infringed, rather than having to go through another internal process. That said, the courts tend to encourage people to utilise internal processes first, because it is a good way of managing court resources. Does that answer the question?
Emma Hardy
Q On that direct point—thank you for letting me come in—the Secretary of State said on Second Reading that this “legal route”, the “new statutory tort”, is “an important backstop”—
“we do not want all cases going to court where they could otherwise be resolved by other means.”—[Official Report, 12 July 2021; Vol. 699, c. 50.]
However, as you have just outlined, there is no requirement in the Bill to go through the internal processes before going to the freedom of speech tsar—or whatever title they are given. Is that of concern to you?
Smita Jamdar: I think there is a restriction on going to the freedom of speech tsar; I think they are proposing that you have to go through the internal complaints procedure before you go through the OfS’s complaint process. However, I do not think there is any such restriction on going to court.
Michelle Donelan
Q But it would not be the route available for academics and visiting speakers.
One last question. I was interested to know your views on the new duty to promote the importance of free speech and whether you feel that would shift culture on campus.
Smita Jamdar: That is probably the best part of the Bill as far as I am concerned. Ultimately, the way we will address the concerns around freedom of speech is very unlikely to be through litigation or regulatory intervention because it is a cultural point. Many universities that we have worked with are already keen to promote freedom of speech. If they have a statutory duty to do so, I am sure it will help to some extent. For me, the central question will be the definitional problem of what is the mischief that we are trying to address because it is very wide-ranging.
A duty to promote free speech would not necessarily in my view get over things like people feeling nervous about expressing views that they think are unpopular, because you are not necessarily worried there about somebody taking formal action against you; you are worried about how your peers might react to you. In reality, we cannot legislate out the fact that people will naturally react to views. It is part of how we all communicate with each other.
I think the duty is a good thing. It is the best part of the Bill as far as I am concerned because it is the one most likely to achieve what everybody wants to achieve. But we do have that definitional problem—some of this stuff is just human nature, and I am not sure that you can legislate or promote that out of existence.
Matt Western
Q To come back to my opening question about unintended consequences, what we have heard a lot from various people and prior to these sessions is about the uncertainty and the real fear out there that employment contracts may get shortened and the insecurity of tenure in employment at universities will become greater. In your professional view, Ms Jamdar, is there any risk that the tort could be used to circumvent employment law?
Smita Jamdar: I am not sure I follow in what way the statutory tort would circumvent employment law remedies. What I can see is that if you present any institution that has a duty to safeguard its resources, to manage them effectively, to deliver them in most cases for a charitable objective—education and research—with a risk that they could be sued at any time, they are going to look for ways of minimising that risk before it happens. It is too late once you are already in court. There are all sorts of challenges to getting yourself out of court very quickly.
The concern would be that governing bodies, who are rightly there to try to make sure that the assets are used for the proper purpose and not diverted to unnecessary litigation, take steps to introduce preventative measures. I hesitate to use this phrase because I know it has been used a lot already in this discussion, but it creates another sort of chilling effect, which is risk aversion on the part of institutions, who say, “Actually, I need to manage this risk and therefore I am going to take whatever steps I need upfront to reduce the likelihood of someone challenging me.”
I am talking on behalf of universities because they are my client base, but if you looked at student unions and particularly the fact that they may not have as many resources to start with, they too may start to feel that they need to find ways of reducing the opportunity for problems to arise, rather than doing what I think we would all prefer them to do—create an environment where lots of conversations are happening and lots of debate and discussion is taking place.
John McDonnell (Hayes and Harlington) (Lab)
Q I want to seek your advice about another piece of the Bill: subsection 12 of clause 7 about the review that will take place. It states:
“This paragraph applies if the Secretary of State requests the OfS to—
(a) conduct a review of the scheme or its operation (or any aspect of either of those matters), and
(b) report the results of the review to the Secretary of State.”
We are not sure about what the contents of that review will be and we have not seen any guidance on that yet, but I would expect it to start looking at cases—potentially individual cases. We could get into a situation where individuals are named as a part of that review, because we are talking about the operation of the scheme.
Clause 7(13) states:
“For the purposes of the law of defamation, absolute privilege attaches to the publication of—
(a) any decision…and
(b) any report”.
I raise this point about this particular legislation because, although I can understand why privilege is awarded to Ministers, Secretaries of State and others in certain instances, we could be in a situation where individuals could be named, and in a way that could affect their whole careers and lives, without having any ability to take action with regard to anything defamatory that is said about them. It seems to narrow down the ability to secure redress and, for me, that cannot be right in any piece of legislation, particularly when we are talking about individual rights. What is your view on that?
Smita Jamdar: That raises a problem that permeates the Bill. We are often talking about essentially legal judgments, because we have to judge whether speech is within the law or outside the law. You can see a situation where somebody wants to say something that somebody else regards as defamatory, and therefore says, “You can’t say this about me.” It goes off to the Office for Students, who, on some basis—I have to say it is not clear to me—is supposed to form a view on whether or not the statement was or was not defamatory, and then it will publish a report on that.
The OfS is protected under this legislation, because it has that absolute privilege, and the Ministers are protected, but in some ways what you will have done is taken the original defamatory statement and published it more widely, as far as the individual is concerned.
To my mind, if you want to resolve these matters through a legal lens, you should go to court and court will decide. I am not sure how the OfS would have the expertise to do it and therefore there is a risk that what it then publishes does not necessarily protect the rights of the individuals who are either named or identifiable through the reporting.
The Chair
Q We will now hear from Tom Simpson, who is an associate fellow at Policy Exchange. We have until 4.15 pm for this session. Mr Simpson, welcome. Could you please introduce yourself?
Thomas Simpson: Thank you very much for having me at the Committee. It is a real pleasure to be here this afternoon. I am Tom Simpson, and I am associate professor of philosophy and public policy at the Blavatnik School of Government, University of Oxford, and a senior research fellow at Wadham College, Oxford. I was one of the co-authors of two Policy Exchange papers on this topic recently.
Matt Western
Q Thank you, Mr Simpson, for joining us today. I understand that you are also a veteran of Iraq and Afghanistan. Thank you for your service. I just want to pick up on a few points. I want to start with a general question about how you envisage the provisions of this Bill changing the culture of freedom of speech on our campuses.
Thomas Simpson: My disciplinary contribution here is as a philosopher—that is my academic discipline—and from working in the context of a school of government and public policy. I have spent quite a lot of time trying to think through what conceptual issues are at stake and what institutional means might try to address them.
Many of the reasons that media controversy around this issue arises is that there are these high-profile instances of dismissal or no-platforming. The really deep question is to what degree are they representative of a wider, underlying chilling effect across the sector. In my view, the real significance of this Bill is the long-term impact it will have over 10 years. One way to think about the Bill for those who are cautious about it is that it is really a form of anti-discrimination legislation. In the same way as the Equality Act 2010 has had, over a 10-year period, a really fundamental foundational shift in our public culture in the UK, my vision for this Bill is that, over a 10-year period, it will have a foundational, fundamental shift in culture within the university sector.
One of the complicated questions is really a sociological question. What seems at stake is that these high-profile controversies create a sociological order where a certain viewpoint is considered toxic, or is off the table or not up for discussion, which sends out a chilling message across the sector that you should not engage in that. The legal remedies that plug the gaps of previous legislation will start to stop that happening so that people will start to claim their free speech rights because they know that they are no longer subject to the risks they were previously subject to. As people claim their free speech rights, and as the courts uphold that, that should spread an opening effect across the sector.
Matt Western
Q We have heard from various contributors, and there are obviously differing points of view, but it strikes me that in any organisation you have different points of view. I presume that you are able and confident enough to speak out. Why do you think others are not? As we heard from Stephen Whittle, you should just make your points loud and clear.
Thomas Simpson: I decided not to speak out. The first issue I spoke out on was Brexit in 2016. This was a really catalytic issue for me. I was a year away from what is called reappointment to retirement age at that stage. Once I went through that process, which I did successfully, it becomes very difficult to sack me within the University of Oxford’s governing statutes, but I would not have spoken on academic freedom as an issue before I went through the reappointment to retirement age process because the public discourse around academic freedom as an issue is sufficiently controversial, even within academia, to mean that I risked jeopardising these formal processes of appointment. That was a personal judgment that I made. Now, the question is: is that a rational judgment?
In the summer of 2019, as I was beginning to think more formally about this, a research paper came out looking at an international sample of philosophers. It asked people to identify their ideological affiliation. What you get in that is that approximately 75% of philosophers identified as left leaning, about 11% as moderate centrists and about 14% as conservative. It then asked people, “To what extent are you willing to discriminate in job appointments, refereeing of journal articles and grant applications, against people of a different ideological persuasion?”
Matt Western
Q This was an international study?
Thomas Simpson: It was a study of academics based internationally, so it bears on, but not directly, the UK situation. The finding there is that the willingness to discriminate is bipartisan, so people identifying as both left and right are willing to discriminate against those on the opposite side. In this particular study, it was 55% left against right and 45% right against left.
The consequence of that is that my expectation that, were I to express publicly that, as it happened, I voted leave in 2016 with half the country—half the country went the other way; there were reasonable people on both sides—the likelihood is, given that there is a right-left orientation to that now, that were I to sit on an appointments panel, approximately half of those who identified as on the left, the majority, would be willing to discriminate against me for that position. That is beginning to give evidence that there are rational grounds for that concern.
Matt Western
Q You mentioned the figure of 75% being left leaning and you said that it was an international study. I think that in the report you talk about 75% of UK academics being left leaning, so it sounds like the UK is very much in correlation with the international picture, from what you have just said.
Thomas Simpson: Our study really bore out figures that were consistent with the international picture.
Matt Western
Q All organisations have different mixes. I would be very interested to know what the poll would be for officers within the UK armed forces—the political balance between them. Is it not just the case that that is the way it is? Academics who work in UK universities—you were also talking about the international picture—come into this work because they have an interest in those subject areas and they want to explore them. That is just the nature of it. I do not believe that heads of department hire people—perhaps you have a different point of view—or heads of department have a different point of view about whom they hire, based on their political allegiance or what their leaning may be. It is perhaps more about an interest in the topics that they have and what that will bring to the university. I think that in this report you talk about balance. This has been discussed during today’s sessions: how is it that you imagine balance gets achieved on our campuses through this piece of legislation?
Thomas Simpson: What I agree with absolutely is that most institutions will have some kind of prevailing culture—it may have a political orientation or it may emerge in different respects, so on non-political issues. What is at stake then is whether those who have the majority viewpoint see themselves as entitled to take action against those who have the minority viewpoint, or differ from the culture in some important respect. And that tipping point is what I began to get the sense had changed. Clearly, the public sphere has been under real pressure—in turmoil—over the last five years, but there has been an emergence of a kind of animus associated with political viewpoint, which has made it very difficult to engage on these topics.
Part of the complexity of academic life is that so many of the really substantial decisions—for instance, on research grants, publications and appointments—take place in the privacy of your office. So you are reading documents; you just make a judgment. You are making a judgment of quality; that should be the primary consideration. But your judgment of quality is very difficult to disentangle, as we move into a more polarised environment, from a judgment of, “Is this the kind of person that I would like to have around? Is this the kind of person who is on my side?” And the moment we shift into that thinking, that is absolutely lethal for academia.
My view is that the great proportion of academics are committed to academic freedom, do their work with real integrity and do not fall into these traps. We saw that with the Cambridge University vote. But a relatively small proportion can then exert a chilling effect across a wider set of issues, which then make you, the individual, very reluctant to speak out publicly on that.
Matt Western
Q But I sense that you are quite hung up about the figure that 75% of staff or academics in our universities are left-leaning and that somehow this is really a distortion, when clearly it is not, as you said, across the international academic landscape. I mentioned the alternative example of officers within our military. It is just that people of a certain persuasion gravitate to that line of work because that is what motivates and interests them. Surely that is simply the case at our universities.
Thomas Simpson: The question is whether those who do not conform to the majority viewpoint feel a freedom and a permission to speak publicly, and whether they are welcomed in doing that, and my experience has been that that cannot be freely assumed in all the situations that it should be.
Just moving on to the work of the Bill, one of the lines that felt like it was becoming taking for granted in the last session, and that I might want to push back on, was the idea that the OfS would have the last word and that this director of academic freedom would be, in some sense, judge and jury. What the Bill really sets out is a series of persuasive measures by which that director can influence the culture within the sector. Indeed, any particular judgments that they make are not judgments on a particular individual case; they are recommendations, which both parties are free to ignore.
I think that is a very powerful scheme, because what it sets out is that it is a persuasive recommendation; whether or not a particular university would feel subject to it would depend on how well argued it is. The university will be free to take its own legal advice and say, “We think this is not persuasive and would not hold up in a court of law. We will therefore ignore the recommendation.” That would then set off a series of events, where the other party felt like the recommendation had not been enacted. It would be up to them to make the decision: “Am I sufficiently confident about the OfS’s recommendation and my view on this case that I want to take it to court?” So it would remain the case that the courts would be able to adjudicate on recommendations by the OfS.
Lloyd Russell-Moyle
Q Can I come in on this effect whereby you are saying that right-leaning academics are more likely to feel that they need to self-censor, which is kind of what you are suggesting, in an institution? Your report says of academics that are
“‘fairly right’ or ‘right’, 32%... have refrained from airing views”
in front of colleagues. However, the report of general academics showed that 35% had refrained from sharing their views in front of colleagues. Now, that may be too high on all sides, but actually it shows that more left-wing academics than right-wing academics feel that they cannot share their views in front of colleagues. Surely this is not a right or left thing. I just wanted to move it away from this right or left thing. This is about making sure that colleagues feel safe to talk in the workplace, and surely a workplace-based or employment-based law would be better than a law that seems to address some other kind of issues.
Thomas Simpson: I am very grateful for that intervention. I should really be clear again that I start off by saying I am a philosopher. My co-author, Eric Kaufmann, who I believe may be coming tomorrow, is far better placed to answer these questions. So questions of how the study relates to others are absolutely for him.
I think one of the real tragedies of the current situation is that this is seen in the general media discussion of academic freedom as a right-left thing. The history of the issue is a very different situation. So this has been a concern for the political left at very important points—the 1950s in America, most obviously, and the early 1900s in America—
Gareth Bacon
You have had your say, thank you very much.
Thomas Simpson: I am very cautious about the language I would use to describe that situation, but I want the rule of law rather than the rule of politics. That is the frank truth.
Matt Western
Q You cited the examples of the two academics at Cambridge to illustrate your position. Surely those particular cases needed to be dealt with by changes to employment law—and that is the issue with this Bill. The Opposition understand that there are certain things that need to be updated in employment law, the online harms Bill legislation and maybe in equalities, but this seems to be the wrong way of going about it. In the two cases you quoted, surely employment law would have sorted that?
Thomas Simpson: As I said earlier in the evidence, I would seriously support considering introducing the employment tribunal as the first court to consider cases of dismissal in that situation, in addition to the existing measures in here.
The Chair
There are no further questions from Members, so I thank Mr Simpson for his evidence, and we will move on to the next panel.
Examination of Witness
Dr Bryn Harris gave evidence.
The Chair
We will now hear oral evidence from Bryn Harris, who is the chief legal counsel at the Free Speech Union. May I ask you to move forward, Mr Harris? I remind Members that we have very limited time for these sessions, and we have until 5 o’clock for this one. Welcome, Mr Harris; please introduce yourself for the record.
Dr Harris: Thank you very much. I am Bryn Harris, and I am chief legal counsel at the Free Speech Union.
Matt Western
Q Thank you for joining us today. I am not very familiar with the Free Speech Union—can you just explain to us where the FSU receives its funding?
Dr Harris: From our members and from donors. We are a member-based organisation, and people pay a subscription to be members of the FSU. That accounts for a large part of our funding.
Matt Western
Q Would you mind giving some examples of the range of membership you might have—being transparent about it?
Dr Harris: The prices, do you mean?
Matt Western
Q Not the prices—the bodies, the members. Who are they? At the moment, perhaps I am the only person here who does not know much about the FSU, but we are about to take experienced witness evidence from you, so I am trying to understand more about who is behind you and what the purpose of the FSU is.
Dr Harris: In terms of the range of members, certainly we have a good number of students, and we have had a good number of higher education cases. The last time we did the figures, it was about 30%. There is then a large number of employment cases—when I say cases, I mean when someone comes to us with a dispute relating to freedom of speech—I think another 30%, although I can check the figures later if you would like. They obviously vary very much in their background and the disputes they bring to us.
One thing I would say is that the people who come to us in trouble are very often not at all privileged. They are people who are in trouble with an employer or a university that, we believe, is abusing its power and essentially punishing that employee or student for saying something that it finds distasteful.
Matt Western
Q So you are funded from fees from those who can afford it, and from donations? Would that be right?
Dr Harris: That is correct, yes. We also have a discount fee for students and those on benefits.
Matt Western
Q I will bear that in mind.
Dr Harris: You already have free speech—you are an MP. You are protected.
Matt Western
Q Let me move on. You have described the statutory tort, which we discussed at great length earlier, as a real game changer. Is it not merely a game changer for vexatious complaints that might just happen to come your way, from the likes of vexatious litigants, climate change or genocide deniers, who can shelter behind this very wide tort?
Dr Harris: There are quite a few things there to pick up on. First, contrary to what you might believe, our ambition for this Bill is not to be racing to court every so often bringing cases. We want to see that universities are urged to comply with it and that they respond to avoid the new liabilities that it creates by protecting freedom of speech. I know the issue of vexatious litigants was an issue that concerned a lot of Members on Second Reading, but I see little chance that this will be particularly attractive for the vexatious litigant. There are a number of reasons for that. First, the new OfS complaints scheme has the power to filter out vexatious litigants. We do not know yet, but it is likely that anyone who wants subsequently to bring a claim in the courts will be required to go through the OfS first, as a form of alternative dispute resolution. That is one way in which I think we are likely to see the weeding out of vexatious litigants.
The other point to note is that any right potentially attracts vexatious litigants, including fundamental human rights such as freedom of speech. We have to be careful about backsliding on protecting fundamental rights on the basis that there is a potential risk of vexatious claims.
The other point I would make, which is very important, is that I think a lot of criticism of the Bill seems to portray the courts as supine—as passive. It completely misrepresents the fact that the courts have considerable case management powers—that they can strike out vexatious claims and that a claim with no real prospect of success can be disposed of at summary judgment. That is not to mention the practical difficulties of bringing a meritless claim. You are going to be open to adverse costs, because you are wasting the court’s time. All of those protections are in place and restrain the vexatious litigant, so there is no real reason to identify this particular new statutory duty and correlative right as enticing the vexatious.
Matt Western
Q I understand that you have commented elsewhere that you believe that the normative power of changes to the law can shift social values. Do you not recognise that the Bill could have the inverse effect and shift social values towards being less willing to hear a diversity of views, for fear of being sued?
Dr Harris: I am not sure I said that, but it is still a good question. It is hard to see in that situation where the danger of being sued arises. My understanding is that this is likely to make it much easier to secure diversity of opinion in the higher education section, because it will be difficult to punish students who say things that are distasteful to some and it will be difficult to rescind invitations to speaking events, and there will also be this enhanced freedom—the academic freedom—for members of staff. That creates a framework, but no more than a framework. I am trying to answer your question; if I have not, I am sure you will tell me.
Nothing in the Bill will make people value freedom of speech. The law cannot make anyone ethically say that freedom of speech is a good idea. It will not, of itself, create a culture of free speech, which is what we really need, and it will not, of itself, make academics start disagreeing with one another, but it will create the conditions by which that can happen. It will allow those who seek to restrain such diversity—those who believe there should be a degree of uniformity—to now be restrained. It creates the conditions by which those changes can happen, but I very much believe that it is for the autonomous institutions themselves to change those cultures. All the law can do is set the ball rolling and create the framework.
Mr Jones
Q Why do we need legislation to do that for those institutions? Most university charters have such points in them. The 1987 Act has it in there as well. Why do you need legislation to do that? Surely it is about upgrading the guidance and so on.
Dr Harris: You are right that—at least following the 1988 Act—many universities have in their statutes clauses protecting academic freedom, and that tends to be in the same wording. In terms of why we need law, again, I think we come back to the question of whether we regard and respect freedom of speech as a fundamental right. I think most people here—and, I hope, most lawmakers in a liberal democracy—would agree that it is a fundamental right and that it is fundamental to the flourishing of the individual and the running of civil society. Universities certainly pay lip service—if I can say that—and when challenged, they will always say, “Freedom of speech is our lifeblood.”
Mr Jones
Q But its definition could be determined by who the Government appoint as director or by the advice that they are given at the time, so that is a highly political situation. It might be comfortable for the present Government who are in control at the moment, but if you had a Government at the other extreme who want to take a very different view, by being able to appoint an individual or make an intervention like that, they could define freedom of speech in a completely different way that you and I would completely disagree with.
Dr Harris: To a degree, I agree, but the director must enforce free speech within the law, and the director will have no power to say what the law is. If the director misdirects him or herself as to what the law says on free speech, it can be challenged in the courts—it would be an error of law.
On the question, I think that, ultimately, what will happen is that there will be definition and enforcement by the courts of those duties and rights created by the Bill. It is correct to say that there is a role for an administrative body, the OfS. That is a trade-off that it is often necessary to make. It is worth while to have a cheap, informal and quick form of adjudication. The idea that every dispute—especially for students—should be taken to court, is simply impractical. Even though there can be drawbacks with administrative adjudication, it is essentially a stopgap so not everything has to go to the courts. Ultimately, the free speech that we are talking about here is defined and enforced by the courts. It is free speech within the law. We should all be happy with the idea that free speech is a right enforced by the courts.
Matt Western
Q You say that this is a real game changer, this piece of legislation. According to the OfS, we have had fewer than five events cancelled in universities in the two years between 2018 and 2020. In your submission, something like less than one incident a month for the last five years has come to you. There is quite a mixture of cases and incidents that have been brought to your attention, including several WhatsApp messages from students on campus and so on. Are you not guilty of a bit of hyperbole to say that this is a real game changer? The universities need to work with the OfS to tighten up processes, adopt best practice and change individual legislation, as we discussed earlier today, as opposed to adopting the Bill.
Dr Harris: Every MP must decide for themselves how happy they are to turn a blind eye to infringement of a fundamental right and how happy you are to pay that political price.
Matt Western
indicated dissent.
Dr Harris: I see you shake your head, but I think that is an important question. At what point do we say we see here abuse of bureaucratic procedure, essentially to enforce a monoculture? We see abuse of disciplinary processes, and those who are affected are predominantly, as we see, our young and very often people who are in their first year at university—very young people—who do not know what to do. They feel bullied. We are talking about, in some cases, particularly with many gender critical female academics, lives and mental health ruined. We need to have a sense of what is our quantum here. How much of this are we prepared to tolerate before we decide that something needs to be done in order to change it?
The reason I think the Bill is necessary is that the mere existence of the legislation as it is on the statute book—there can be no doubt that it is there on the statute book, and you will find the Education (No. 2) Act 1986—is not enough. It needs to have practicable, reliable means of enforcement. That is why, in too many of these instances of people’s lives being ruined and of people being bullied, it has happened too much because it is too difficult for there to be a realistic threat of enforcement. That is because judicial review, which is the means of bringing a claim under section 43, is very expensive. You really have to lawyer up and it is not practical.
The Chair
In the interest of trying to get every Member in, can you keep your answers a bit more succinct? I recognise that they are very complicated and it is a complex issue.
Higher Education (Freedom of Speech) Bill (First sitting)
Matt Western Excerpts(2 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Chair
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.
Matt Western (Warwick and Leamington) (Lab)
Q
“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.
Matt Western
Q
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.
Matt Western
Q
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.
Matt Western
Q
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.
Matt Western
Q
Professor Stock: I would rather not talk just about Sussex. It is a general problem.
Matt Western
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.
Mr Kevan Jones (North Durham) (Lab)
Q
Professor Stock: I am not a lawyer, but I assume that there should be some discussion of how recruitment happens and—
Mr Richard Holden (North West Durham) (Con)
Q
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.
Matt Western
Q
“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.
Matt Western
Q
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.
Matt Western
Q
Dr Ahmed: There is no evidence that I am aware of that there would be any problems with the appointments process.
Charlotte Nichols
Q
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.
The Chair
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.
Matt Western
Q
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.
Matt Western
Q
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.
Matt Western
Q
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.
Michelle Donelan
Q
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.