Higher Education (Freedom of Speech) Bill (First sitting)
(2 years, 7 months ago)
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The Committee consisted of the following Members:
Chairs: † Sir Christopher Chope, Judith Cummins
† Bacon, Gareth (Orpington) (Con)
† Britcliffe, Sara (Hyndburn) (Con)
† Bruce, Fiona (Congleton) (Con)
† Donelan, Michelle (Minister for Universities)
† Glindon, Mary (North Tyneside) (Lab)
† Hardy, Emma (Kingston upon Hull West and Hessle) (Lab)
† Hayes, Sir John (South Holland and The Deepings) (Con)
† Holden, Mr Richard (North West Durham) (Con)
† Johnston, David (Wantage) (Con)
† Jones, Mr Kevan (North Durham) (Lab)
† McDonnell, John (Hayes and Harlington) (Lab)
† Nichols, Charlotte (Warrington North) (Lab)
† Russell-Moyle, Lloyd (Brighton, Kemptown) (Lab/Co-op)
† Simmonds, David (Ruislip, Northwood and Pinner) (Con)
† Tomlinson, Michael (Lord Commissioner of Her Majesty's Treasury)
† Webb, Suzanne (Stourbridge) (Con)
† Western, Matt (Warwick and Leamington) (Lab)
Kevin Maddison, Seb Newman, Committee Clerks
† attended the Committee
Witnesses
Professor Kathleen Stock OBE, Professor of Philosophy at University of Sussex
Dr Arif Ahmed MBE, Reader in Philosophy (also Fellow of Gonville and Caius College) at Cambridge University
Trevor Phillips OBE
Professor Nigel Biggar CBE, Regius Professor of Moral and Pastoral Theology at Oxford University
Public Bill Committee
Tuesday 7 September 2021
(Morning)
[Sir Christopher Chope in the Chair]
Higher Education (Freedom of Speech) Bill
The Chair
We are now sitting in public and proceedings are being broadcast. I have a few preliminary announcements. The first is that obviously there is not room for all the members of the Committee to sit around the horseshoe. Therefore, some are already sitting in what we used to call the Public Gallery. For those who are sitting in those places, it will not be possible to speak from that position, so if you wish to speak you will need to go to the microphone, which is situated over to the right. I am very sorry, but that is the disadvantage to those who have arrived and found themselves without a seat around the horseshoe.
We are asking people with speaking notes to send them to hansardnotes@parliament.uk, but I hope that this morning’s proceedings will be rather brief and we that will concentrate on questions rather than statements. We will obviously try to keep mobile phones off and ensure that we do not breach the rules in relation to refreshments: tea and coffee are not allowed during sittings. Today, we will first consider the programme motion, then the motion to enable the reporting of written evidence, and then a formal motion to sit in private while we discuss among ourselves who will do what in relation to asking questions of our witnesses.
I call the Minister to move the programme motion standing in her name, which was discussed yesterday by the Bill’s programming sub-committee. I think that the Committee will probably be in agreement.
The Minister for Universities (Michelle Donelan)
Thank you, Sir Christopher. I beg to move,
That—
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 7 September) meet—
(a) at 2.00 pm on Tuesday 7 September;
(b) at 3.30 pm and 5.30pm on Monday 13 September;
(c) at 9.25 am and 2.00 pm on Wednesday 15 September;
(d) at 11.30 am and 2.00 pm on Thursday 16 September;
(e) at 3.30 pm and 5.30pm on Monday 20 September;
(f) at 9.25 am and 2.00 pm on Wednesday 22 September;
2. the Committee shall hear oral evidence in accordance with the following Table:
TABLE
DateTimeWitnessTuesday 7 SeptemberUntil no later than 10.30 amProfessor Kathleen Stock OBE, Professor of Philosophy, University of Sussex; Dr Arif Ahmed, Reader in Philosophy, University of Cambridge and Fellow of Gonville and Caius CollegeTuesday 7 SeptemberUntil no later than 11.25 amTrevor Phillips OBE; Professor Nigel Biggar, Regius Professor of Moral and Pastoral Theology at the University of OxfordTuesday 7 SeptemberUntil no later than 2.45 pmProfessor Stephen Whittle, Professor of Equalities Law, Manchester Metropolitan UniversityTuesday 7 SeptemberUntil no later than 3.30 pmShakespeare MartineauTuesday 7 SeptemberUntil no later than 4.15 pmPolicy ExchangeTuesday 7 SeptemberUntil no later than 5.00 pmFree Speech UnionMonday 13 SeptemberUntil no later than 4.15 pmProfessor Eric Kaufmann, Professor of Politics, Birkbeck College, University of London; Professor Matthew Goodwin, Professor of Politics and International Relations, University of Kent and Director of the Centre for UK Prosperity at the Legatum InstituteMonday 13 SeptemberUntil no later than 4.45 pmBritish FutureMonday 13 SeptemberUntil no later than 5.15 pmOffice for StudentsMonday 13 SeptemberUntil no later than 6.00 pmJonathan Grant, Professor of Public Policy, King’s College London; Paul Layzell, Principal, Royal Holloway, University of LondonMonday 13 SeptemberUntil no later than 6.45 pmAntisemitism Policy Trust; National Union of Students
Date
Time
Witness
Tuesday 7 September
Until no later than 10.30 am
Professor Kathleen Stock OBE, Professor of Philosophy, University of Sussex; Dr Arif Ahmed, Reader in Philosophy, University of Cambridge and Fellow of Gonville and Caius College
Tuesday 7 September
Until no later than 11.25 am
Trevor Phillips OBE; Professor Nigel Biggar, Regius Professor of Moral and Pastoral Theology at the University of Oxford
Tuesday 7 September
Until no later than 2.45 pm
Professor Stephen Whittle, Professor of Equalities Law, Manchester Metropolitan University
Tuesday 7 September
Until no later than 3.30 pm
Shakespeare Martineau
Tuesday 7 September
Until no later than 4.15 pm
Policy Exchange
Tuesday 7 September
Until no later than 5.00 pm
Free Speech Union
Monday 13 September
Until no later than 4.15 pm
Professor Eric Kaufmann, Professor of Politics, Birkbeck College, University of London; Professor Matthew Goodwin, Professor of Politics and International Relations, University of Kent and Director of the Centre for UK Prosperity at the Legatum Institute
Monday 13 September
Until no later than 4.45 pm
British Future
Monday 13 September
Until no later than 5.15 pm
Office for Students
Monday 13 September
Until no later than 6.00 pm
Jonathan Grant, Professor of Public Policy, King’s College London; Paul Layzell, Principal, Royal Holloway, University of London
Monday 13 September
Until no later than 6.45 pm
Antisemitism Policy Trust; National Union of Students
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 9; the Schedule; Clauses 10 to 12; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 23 September.
The motion will ensure that the Committee has sufficient time to fully scrutinise this piece of legislation. I am delighted that the House has been given the time that it requires to thoroughly debate the contents of the Bill, and draw evidence from the experts, many of whom, I am pleased to say, my Department is already talking to or working closely with, such as Nicola Dandridge of the Office for Students, Danny Stone and Trevor Phillips. I therefore invite colleagues on the Committee to agree to the motion.
Question put and agreed to.
The Chair
We will therefore proceed to line-by-line consideration on Wednesday 15 September. That means that the deadline for tabling amendments to be considered on the first day is the rise of the House on this coming Friday, 10 September.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Michelle Donelan.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room, and will be circulated to Members by email.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Michelle Donelan.)
The Chair
We now move into private session to discuss lines of questioning. Members of the public who are present, and officials, will need to absent themselves —hopefully not for very long.
The Committee deliberated in private.
Examination of Witnesses
Professor Kathleen Stock and Dr Arif Ahmed gave evidence.
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 Jones
Q That is not covered by the Bill. If the logic of your argument is that the reasons why universities are not—
Professor Stock: I think that is already happening, for what it is worth, so I am not sure you are going to be able to change that in any way. I think that people are coming to interview on the basis of their views.
Mr Jones
Q Is not the logical conclusion to what you are saying, your argument, this? You are saying that institutions are not using the existing law, which is there to protect academic freedoms; you have said, in the evidence that you have just given, that it is because they are afraid of not attracting students because of people like you or others having views that might be hostile to them. Is that not linked to the fact that what universities will do is just not employ people like you?
Professor Stock: I understand the question; I just do not really see how this—you have not pointed to a particular aspect of the Bill that would encourage that situation. I think that situation may already be in place. Arguably, if we change the culture of universities so that people—administrators as well as academics and students—come to understand why it is a good thing to have viewpoint diversity and a good thing to have civil disagreement, that might be less likely to happen. This should not just be a bureaucratic, box-ticking exercise. Done right, it should change the culture of the university sector, and that will have ramifications for far more than the university sector, I think; it will have good, positive implications for civil discourse generally. However, I do not see how this is going to somehow increase the chances of people being excluded on the basis of their views at the recruitment stage. We are still at HR—
Mr Jones
Q But your main argument was the fact that somehow this legislation was needed because universities were not going to employ, not wanting to get, people like you, because it was turning off students from going to those universities. There is a system in legislation, in the Education Act, to protect those academic freedoms. All I am saying is that if you do this, if you are saying that your main argument is that they are doing it—
Professor Stock: It is one of my arguments.
Mr Jones
Q Well, your main argument is that their argument is that they are doing this because they are afraid of putting off potential recruits to their universities. The ultimate conclusion to that is that they will just not employ people like you, which I do not agree with, but—
Professor Stock: I have answered that to the best of my ability. I have understood the question each time you have asked it and I have answered to the best of my ability.
Dr Ahmed: My understanding—maybe I have got it wrong—is that new provision A1(9) does mention the case where someone is applying to be an employee of one of these institutions, and they will not be adversely affected by virtue of their free speech expression in those circumstances. It is my understanding that the Bill does say something about that.
The second thing that I would say is that independent of the issue about universities employing or not employing people in order to attract students, the Bill would have the effect, I believe, of discouraging students from thinking that they could put pressure on universities to fire or discipline people by virtue of their views, so it would prevent mobs from forming, mobs that have formed against people I know at Cambridge and other people in the country, because they would know that it would not have an effect.
Mr Jones
Q In a previous life, I was a trade union official, and can I just say to you that employers will find very clear ways of not employing people, to get round any type of legislation? It will not be on the basis of your views; it will be for some other reason, so this does not give a great deal of protection for those individuals anyway.
Dr Ahmed: I do not think that the employer—that is, the management of the university—gets up in the morning and thinks, “How am I going to stop free speech? How am I going to fire these people?” They are responding to pressure from what I think is quite a small group of activists within universities. If this legislation has the effect of creating some kind of countervailing pressure, then you are right. Of course it is not going to solve the problem; I have been a trade union official myself and I know something about what these issues are. Of course it is not going to solve the problem, but it will help, because I think it will create pressure in the opposite direction.
The Minister for Universities (Michelle Donelan)
Q Dr Ahmed, you have previously discussed a soft censorship approach. Can you explain what that is and the impact that you think it will have or that it is having on universities?
Dr Ahmed: You can distinguish between hard censorship and soft censorship. Hard censorship, in my understanding —the distinction is evident in the written evidence that I submitted—means universities actively suppressing certain kinds of speech by enacting certain kinds of regulation. I think we have seen different examples of that, which I am happy to discuss.
Soft censorship is where there is not any regulation, but people know—people sense it themselves, because they know that if they say this, or they say that, or if they present these views, they will be regarded adversely. If they are a student, they might be ostracised
. It might make difficulties for their academic career. That is the result. Because, as it happens, we have an academy, which, at least in some parts, is predominantly in one part of the political spectrum, the result is that certain kinds of research do not get done and certain kinds of views do not get defended by people who, in their hearts, perhaps, believe in them.
Michelle Donelan
Q I have a question to both of you, following up on the earlier questions. The existing legislation ensures that there is a duty to protect free speech and this legislation goes further in terms of promoting free speech. Do you think that is vital to changing the culture on campus?
Dr Ahmed: Yes, I do. Obviously the Bill itself does not go into great detail as to what it means by the word “promote”, and I think that is sensible, because it may mean different things in different institutional contexts, but it could mean, for instance, things like events at induction for students, so that people are made aware in ways that they are not now made aware, certainly at my university, just how essential freedom of speech and freedom of thought is to the very functioning of the university, and indeed to being able to function as an adult in a healthy democracy.
It could mean things like making it central to decision-making processes at all levels of the university, so that when we make decisions, we do not just think about the equality and diversity implications of this planned decision, which we do as a matter of course, but that it becomes just as reflexive that we think about the free speech implications of a measure. That is something that certainly Cambridge and I expect most other universities and other academic bodies are not doing.
Michelle Donelan
Q Professor Stock, do you want to come in?
Professor Stock: I echo that. I think it was implicit in my earlier answer, that one of the attractive things about this Bill is the promotion aspect—that it is not just a defensive crouch and it is not just punitive; there is an opportunity. I believe in academic freedom, so I think I could explain to people why it is an important thing and we could discuss that—argue about it, even. It would be encouraging that sort of aspect of university life, which would have knock-on effects all over the place—on Google in particular.
Michelle Donelan
Q I have one final question to Dr Ahmed. At Cambridge, you successfully put forward the amendment, which I am sure everybody around the table is aware of, altering the requirement of “respecting” to “tolerating”. Why do you think that amendment was needed?
Dr Ahmed: That was one of three amendments that went through on a large majority. The reason for the concern was that the use of the word “respect” and the requirement for respect in that context meant respect for all kinds of ideas and identities as well. That would preclude, for instance, mockery. It would preclude views that give offence to people who hold religious views. My own particular interest is religion. For instance, I teach the work of David Hume. David Hume was about as offensive in his mocking of religion as anyone was in the 18th century. Would I be able to teach that, because his views were certainly disrespectful towards religion?
Another point, of course, is that whether something counts as respectful depends on how willing the person you are disrespecting is to take offence. So, more sensitive people will end up with a kind of veto. We all have our own examples of people who are especially sensitive taking offence. Those people will end up having power over what we can say and what we cannot. The effect would be absolutely to strangle any form of rigorous academic discussion over the most important things in life. That was why I thought the word “tolerate”, which has no connotations of admiration and is completely compatible with mockery—it simply rules out stopping people from practising or having those beliefs—was more useful, and, evidently, many of the dons at Cambridge agreed.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
Q Good morning to you both and thank you for being here. On the issue of academic freedom, I want to turn to what the Bill does and does not say. I am looking at the evidence submitted by your friend, I think, Professor Ross Anderson. His concern is around changing the wording in the Bill from
“freedom within the law to question and test received wisdom”
to
“freedom within the law and within their field of expertise”.
I have concerns that a Bill that is allegedly intended to promote academic freedom could in fact limit academic freedom if you are limited to defining what is your field of expertise. I welcome your comments on that.
The other point in the Bill which concerns me around the alleged promotion of academic freedom versus the reality of the Bill is that it talks about academics and not academic staff or those working within the university. They seem to be exempt from coverage under the Bill, as are visiting academics. What are your thoughts on what the Bill does to promote academic freedom? Where can it be strengthened or changed to actually promote the academic freedom that I believe we all support? Maybe Kathleen first.
Professor Stock: I suspect that we differ on this answer, but I think the difference between academic freedom and freedom of expression, assuming there is one, can only be in principle grounded in expertise. That is what makes the difference between the person who has freedom of expression generally and the person who has special protections as an academic. To put it briefly, that is because academics are perceived to have a certain authority, so their authority should be rigorously tested. They should not be able to get away with just saying, “It is just like this, and you have to accept my word for it.” At the same time, there will be people who want to shut them up or buy them off, so we have to keep them protected.
However, I do see that in practice in a university it might be quite difficult to distinguish between these. For instance, there are a lot of professional services that have PhDs who are looking to get into academia. There are students studying and also working for the university in various capacities, so the blurring is quite present. In practice, it might be that that clause does cause problems and may need to be rethought. In principle, though, that is the rationale for this whole conversation on expertise. There is a further discussion about how to differentiate different fields of expertise.
Emma Hardy
Q Yes. We had evidence on this issue around a field of expertise and the overlapping between the different academic areas and who would define whether you have a field of expertise in one area versus another. Sorry, I am talking instead of you.
Dr Ahmed: I agree with Professor Anderson’s point with regard to the clause about a field of expertise for a few reasons. One is that, as Kathleen says, there are difficulties around defining a field of expertise. To use an example reasonably close to my own heart, if you take Professor Richard Dawkins, one could argue that theology is not his area of expertise. Many theologians would argue that it is not even his area of competence. I would dispute that myself, but it could be argued. Nevertheless, we would certainly want a Bill that protects his freedom to muse about religion as he likes. That is one issue.
The second issue, which is one Professor Anderson showed very well, is that much innovation in science—and I use the word “science” very broadly—comes from cross-fertilisation between fields. Biologists might have insights into economics, let us say, even though it is not their field of expertise or perhaps even their field of competence. That is often where the really interesting and innovative insights come from. A Bill that restricts academic freedom to one’s area of expertise might well have a chilling effect on those kinds of interactions. For both those reasons I agree with Professor Anderson’s suggestion that the restrictions of expertise should be dropped.
With regard to your important point about whom the Bill covers, the way I think of it is that universities are institutions that have public money. They serve a public purpose and it is essential that that involves free speech, freedom of inquiry and freedom to exchange ideas. Therefore, the simplest way to achieve that would be to have a Bill that covers all staff at universities and all students, rather than making what are possibly invidious and certainly difficult-to-draw distinctions between all academic members of staff.
Emma Hardy
Q Do you therefore include visiting academics as well? Further to that, in the evidence from James Murray, he talks about the Bill as it is currently written almost giving primacy to student freedom of speech over academic freedom. What are your thoughts on that? For example, from the evidence that he has given, the Bill says that institutions must have regard to freedom of speech, but, many times in the Bill, it does not add “and academic freedom”. Do you share those concerns that the Bill, as it is written, could give primacy to students’ freedom of speech at the expense of academic freedom?
Dr Ahmed: Well, I certainly do. You say there is a concern that it takes a heavy emphasis on students’ freedom of speech and things like that, but it is one of the things that has been under threat.
Emma Hardy
Q But for institutions and those working in institutions, surely we should be promoting academic freedom?
Professor Stock: I took it as implicit. I did think it was slightly confusing because those two things are usually theoretically distinguished—“What is the difference between freedom of speech and academic freedom?”—so it is a bit confusing that “freedom of speech” is the phrase. However, given the context of “Higher Education (Freedom of Speech)”, I thought “Well, this just must be about academic freedom” but, in terms of drafting, that could be clarified.
I would just add, on who it applies to, I think the more temporary and precarious the person’s position, the heavier the duty we have to protect their speech. It is well understood in classical discussions about academic freedom that being in fear of losing your job, of not getting a promotion, or of not pleasing your supervisor, would give you extra reasons to be quiet, to self-censor and so on, so I think it is important that it applies to temporary and part-time positions.
Emma Hardy
Q And we have that sort of counterbalance that, if academic freedom is to be genuinely protected, I think it does need to be more explicit in the Bill. Would you like to comment on that?
Dr Ahmed: I do agree with that, but, of course, there are plenty of examples, as we know, of students who have also suffered adverse consequences. As I understand it, the term “adverse consequences” is defined in the Bill for academics, but is not defined for students. However, under any natural understanding of the term, students have suffered adverse consequences by virtue of disciplinary investigations, which have often gone on for months—even if no finding was issued against them—for things that were not illegal and were, at worst, slightly shocking. I think, in some ways, it is worse for people who are 18 or 19 than for someone like me to have to go under a discrim investigation; it could ruin their entire career.
The Chair
I will bring in another one. You can come back later, if there is time. We are pressed for time, because this panel must finish by 27 minutes past 10.
Fiona Bruce (Congleton) (Con)
Q Dr Ahmed, in your evidence you say that there are several threats to free speech in higher education. You talk about two: self-censorship and regulation. Could you unpack those a little more, and tell us how widespread those problems are and what evidence you have of them?
Dr Ahmed: With regards to self-censorship, I mean something similar to what I said to the Minister when I mentioned self-censorship: people simply not saying things that they think on matters that are important, or not pursuing lines of research that they think might be fruitful, because they fear the consequences, whether that is full disciplinary action or some other form of ostracism, such as being overlooked for a promotion or various other things. That is what I mean by self-censorship.
The principle bulk evidence that I have is from the University and College Union survey of 2017, which was included in the report for the UN in 2019. It says that 35.5% of UCU members who answered the survey said that they self-censored, compared with something like half that percentage for the rest of what was then the EU.
That is roughly what I mean by self-censorship. I have come across plenty of examples of that. When I was campaigning for the liberalised free speech policy at Cambridge, many people said to me that there are a whole range of issues—from issues to do with race, with transgender, and with Israel and Palestine—on which they were simply unwilling to say what they thought because they feared the consequences. Those are obviously matters of huge importance. That was the first thing—self-censorship.
The other thing that I mentioned was regulation; perhaps I should say micro-regulation, because what I mean is universities placing formal obstacles in the way of people saying things that are perfectly legal.
To give one example, my own university recently put forward a policy, which has now been withdrawn, on discrimination and harassment, which included a variety of things regarded as micro-aggressions. These are things we should avoid. None of them is illegal, as far as I can tell. In fact, on some of them, particularly the one in my case to do with religion, if I had actually heeded that policy it would have impeded my own teaching and professional activity.
Fiona Bruce
Q You say that the Bill, although plainly not enough in itself, could be a first step
“towards recreating a culture of robust and completely open debate without which a university education loses much of its point.”
How effective will the Bill be in achieving that, and what more do you think needs to be done?
Dr Ahmed: With regards to how effective I think it will be, I would look at the Equality Act 2010 and the way in which that has created over the last 10 years a change in the culture of higher education institutions. It was not immediate; it was gradual and it occurred through the institutionalisation of certain values. More generally, the most important thing in human life, the most important determinant of human behaviour, is habit. If we get into the habit of speaking freely and of thinking about these things at all times, eventually it will feed into our values and into our ways of thinking about what a university should be, so I am reasonably optimistic. Obviously, it is an empirical question and there is a paucity of data, but in some way the 2010 Act gives me some hope.
John McDonnell (Hayes and Harlington) (Lab)
Q Professor Stock, on a point that you raised, you are right that we need to ensure that freedom of speech in the academic field is regularly debated. We need to remind ourselves of the critical importance of it as well. My concern is that sometimes in Parliament we see an issue and we rush to legislate, which is not always well thought out as a result of the lack of preparation and consultation. The famous Dangerous Dogs Act 1991 is an example.
You expressed concern about some elements of the Bill. The Bill itself lays a huge range of conditions on student unions and university and academic institutions, and then it brings in potentially draconian sanctions, but we do not know what the sanctions are yet. They all reside at the moment with the Secretary of State. Do you share my view that if the Bill is to proceed, we have to be careful about unforeseen consequences? If we place a duty on a body, there should be a mechanism to ensure that the duty is exercised effectively and under advice as well. There are no advisory structures set out.
For example, you cited in your evidence various incidents that have taken place. There is no mechanism by which you can advise on how things can go forward. In addition, with regard to the sanctions, my worry is that although others might have confidence in the Secretary of State, I have never had confidence in any Secretary of State without direct accountability to Parliament that is open and transparent. At the moment we do not even have a schedule of what sanctions could be levied against institutions and individuals as well as student union bodies. In addition, we have introduced another opportunity for claiming a tort instead of going for a breach of duty as well, which is broadly framed in the Bill but is not specific.
When you raised this question, it struck home with me. Do you believe that there should be elements in the Bill that give us more guarantees about its implementation so that it is effective, accountable and transparent? That means building in mechanisms for future advice. It means being more explicit about the nature of the sanctions and how they operate. To be frank, if I were an administrator at one of these bodies at the moment, I would be working in the dark about how the Bill will be implemented.
Professor Stock: I can see that it is a risk. In a sense, every time you legislate, I assume you are a hostage to fortune to some degree because there is always—
John McDonnell
We try to limit that risk.
Professor Stock: I am not saying that is a good aspect of any legislation. I agree that up to a point a lot is left unspoken. A lot depends on the interpretation of the Bill by whoever the free speech champion is. They are going to have to drive the project. It is going to be really important to get the right person and they are going to have staff, obviously, but I cannot reassure you on these points—I did not draft it.
I have read various critical responses to the Bill that talk about the possibility of vexatious complaints and lack of transparency, but it seems to me that, while I am not downplaying those as potential issues, we also need to remember that there are lots of vexatious complaints against individuals going on at the university level and there is a lack of transparency there. We are talking about institutions. There is more than one set of vexatious complaints to worry about and, arguably, only one of those ruins people’s lives, so that is to the forefront of my mind, but I accept that there is indeterminacy here, because I think there has to be legislation.
John McDonnell
Q I completely understand that, but by addressing one type of vexatious complaint, you could be causing others. With regard to the point that you made about the director for freedom of speech and academic freedom, again there are no structures linked to that in—
The Chair
It is, but you are not the one giving the evidence. Dr Ahmed, do you want to say anything on this?
Dr Ahmed: I have relatively little to add to what Kathleen said on that point. The only thing I would add is that I would like to see a situation in which there was a possibility of extremely draconian measures against universities that are not fulfilling their basic function, and in an ideal world they would never be used.
Sir John Hayes (South Holland and The Deepings) (Con)
Q I am going to use this microphone as instructed, Sir Christopher—my apologies for speaking from the wings. I refer members of the Committee and others to my entry in the Register of Members’ Financial Interests.
Dr Ahmed, you wrote in your evidence, and you have repeated it today, about self-censorship and how that had changed. Would it be fair to say that the culture in universities has changed quite radically? You mentioned the Equality Act, and you might just as well have mentioned the growth of the internet and the intimidation that is delivered through that. How far does that soft censorship, which you implied a moment ago, affect people’s prospects at universities—the acquisition of fellowships, promotions, funding and so on? What evidence do you have that that has changed in universities, in your academic experience and more widely?
Dr Ahmed: With regard to your point about the internet, I would echo some of the things that Kathleen said in her written evidence, to the effect that Twitter, for instance, allows the mobilisation of mobs, quite quickly, against individual academics. That has been one of the effects. As you said, in addition to the Equality Act, the internet has had an effect on that—by which I mean Twitter.
With regard to self-censorship, my own experience has been that it has changed drastically over the last 10 years. Now, for instance, one would regard it as a typical experience to be in meetings where things are being proposed where I certainly sometimes—rarely, in my own case—bite my tongue. I know that there are people who bite their tongues in the sense that they will not object to certain things that are pointless and stupid, simply because they are afraid of the consequences.
What are those consequences? It is different in different cases. In my own case, I have tenure, fortunately, and I am relatively secure, but for someone who is on a temporary contract, you do not even have to be fired or face disciplinary action. All that needs to happen is that you come to end of your temporary contract, which you would normally expect to be rolled over, which typically does happen in academia, and they will just decide for some reason—as one of your colleagues was saying, it can be quite easy to invent a pretext—“Well, actually, we won’t be needing you any more.”
People in short-term positions are, I think, especially vulnerable and are perhaps the ones who are most likely to self-censor. My own experience is that this is happening a lot more now than in the past. That is from my experience of meetings with decision makers at high and low levels within Cambridge University.
Sir John Hayes
Q The implication of what you are saying is that a lot of that will be invisible, because we do not know what people do not say. We do not know who would have been promoted had they said something else, believed something else or taken other stands. Actually, what we may be seeing is the tip of the iceberg. Is that fair? We cannot know how many people are constrained by the culture you have described and by the capacity of the mob to pursue them.
Dr Ahmed: Correct. Of course, you are quite right that it is the tip of the iceberg. The evidence that we have—I am referring again to the UCU survey, which is the largest evidence base that we have—says that 35% of academics self-censor. When you think that that includes people who work in totally uncontroversial fields, such as Diophantine equations, that is a very significant proportion. There is some evidence, but, as you say, it is probably the tip of a huge iceberg.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Q I have to declare an interest. I am a trustee at the University of Bradford union. I have received donations from the University and College Union. I was the UCU co-ordinator at the University of Sussex and I received money from that university to provide educational opportunities for their students. I would like to think that I work in the sector.
Professor Stock, thank you for your evidence. I must say, actually, that your vice-chancellor did sing your praises to me the last time that I met him and said how excited he was for you to be coming here to show the diversity of views at his university. He was very positive, actually, and I have the email to prove it. That might reassure you. He is leaving anyway, so we will see.
You have raised some really important points about making sure that there is diversity in views at a university. Is there a problem, however, if this is put in legislation, that that becomes too strictly defined as requiring balance? We have debates about the BBC and climate change denial, and the need to have equal airtime for people who disagree and for people who agree. Is there sometimes a necessity for a university to develop a course that is balanced not just numerically but also in terms of where the academic weight is?
Professor Stock: There is a useless way to balance and then there is a productive way to balance. The BBC is a completely different context, because often you have to present both points of view simultaneously, and they just start shouting at each other and nobody’s the wiser. However, on a course that extends through time, and possibly over years, it would be unacceptable not to balance. Balance just means going through lots of different points of view that disagree with each other and trying to work out what you think. It means telling the students that it is their job to work out what they think—that they are not necessarily supposed to agree with you just because you think something, but they are supposed to develop their own points of view.
What is happening at the moment, for me personally, is that—completely extraordinarily, relative to the norms of the sector—whenever I do manage to get an invitation to speak somewhere from some poor, hapless person who does not know my reputation in advance, complaints pile in, and they say, “We’ve got to find a trans person to be on stage with you for balance.” I have had the Francis Bacon keynote at the University of Hertfordshire completely changed in format—until covid meant that it did not happen anyway—just because this idea of balance was required. That is much more like the BBC kind of balance. I do not see why I should have had someone right there when no one else is required to have someone there.
Lloyd Russell-Moyle
Q Will the Bill not promote that perverseness? Rather than allowing an academic to speak within their own frame, the university will feel obliged to make sure that there is someone to speaks against—in the case you mention, a trans activist—when actually that totally distorts the ability of an academic to explore ideas without having someone jump down their throat every moment.
Professor Stock: You may know the Bill more intimately than I do—I have read it a few times—but I have not seen anything specific about viewpoint diversity. [Interruption.]
The Chair
We can only have one person speaking at a time. Let the witness speak, please. [Interruption.] Lloyd, will you let the witness respond?
Professor Stock: I think I understand. I do not see anything in the Bill. I think that that is a danger. That is a particularly bureaucratic, shallow understanding of viewpoint diversity and balance. The guidance under the free speech tsar should absolutely avoid demanding that every strong articulation of position is immediately countered, chronologically, by its opposite. That would be facile. However, there are other ways of explaining what balance is, of conceptualising balance, that leave that out.
Lloyd Russell-Moyle
Q The devil is in the detail. You mentioned at the beginning of your evidence, in response to some of the questions, about part of the problem being that people are unsure, particularly those on short-term contracts, and that academics might not be promoted. Is the problem that you identify the very problem that UCU and many of us went on strike over only a few years ago—the gradual move towards temporary contracts in institutions, the move towards lack of tenure and requiring students to do teaching? It is not a problem of freedom of speech; it is a problem of giving people security in their workplace.
Professor Stock: That is a false opposition. It is both. Just for the record, UCU had adopted an irrational view on exactly the issues that I am engaged with. I am no longer a member of the union because it would not support me in my academic freedom, so UCU is not blameless in this area.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
Q I draw the Committee’s attention to my entry in the Register of Members’ Financial Interests. I am an honorary fellow at Birkbeck College at the University of London.
The European convention on human rights is the main underpinning of most human rights rules in the UK, including freedom of speech. The UK, like most of the member states, goes well beyond what that says is the minimum. Given the international nature of academic research and the experiences that you have outlined, I am interested in your view on the adequacy of the minimum protections that that provides for freedom of speech and whether you foresee potential conflicts with other pieces of legislation—for example, inequalities that might result?
Dr Ahmed: With regard to tension with other legislation, I suspect there might well be tension with the Equality Act and difficult decisions to make about a breach of the duty to promote freedom of speech versus the duties imposed under the Equality Act, so I think there are issues that guidance should be able to sort out with regard to what counts. My understanding of the ECHR is that there is the strongest possible protection for academic speech, so almost nothing can count as harassment in a pedagogical context.
Charlotte Nichols (Warrington North) (Lab)
Q I am interested in two of the points that we have come back to a few times today. The first is around the distinction between academic freedom and freedom of speech. You referred to your view that in that context there is no such thing as harassment. I wonder, in relation to remarks made by the Secretary of State when the Bill was first announced, whether you think there is a limit to academic freedom versus freedom of speech and where that limit should be drawn. Holocaust denial was given as an example. To declare an interest, I am Jewish, so that is something that I am interested in.
Professor Stock: To clarify, do you mean the tension between academic freedom, freedom of speech and the rules against harassment?
Charlotte Nichols
Q And if you think there should be a limit in the Bill, or are you saying that in an absolutist context there should be absolute freedom of speech?
Professor Stock: I am not saying that, and I do not think the Bill says that, as I understand it. I think this sits within wider sets of laws about speech. I am not a free speech absolutist. The vast majority of the instances that we are talking about are perfectly within the law but are still being censored and having adverse consequences. I acknowledge that there are some kinds of speech that are criminal and should not be allowed in universities. I think the law is quite well set up to deal with things like that. I understand there is already a legal precedent on holocaust denial. I understand your concern—I really do. There is a defensive tendency for universities to leap to the most extreme example. If we adopt entirely or orient our attitude towards those examples, and if we are extra cautious because of these possibilities, we really lose a lot in the middle ground. These things are always difficult. You could not possibly sort it out in 30 minutes.
Dr Ahmed: I agree with almost everything that Kathleen says. There is a distinction between what the Bill says and what I think needs to happen with regard to free speech. With regard to the first point, the Bill as I understand it says free speech within the law, and therefore makes reference explicitly to existing legislation. The Bill therefore does not protect anything that is already illegal.
With regard to my own view, I am close to being a free speech absolutist. Like many people, I think that the law in this country is overly restrictive. Obviously there are some things, for instance to do with court proceedings, confidentiality of applications and so on, where it is proper that there are restrictions. But short of such things, we could be a lot more liberal than in fact we are. That, however, is a separate question from the content of the Bill.
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
I am afraid that brings us to the end of this session. We have no option but to close now, but can I thank both our witnesses today? You have generated a very spirited discussion and stimulated this Committee. I think that is a really good precedent. Thank you very much for coming along.
Examination of Witnesses
Trevor Phillips and Professor Nigel Biggar gave evidence.
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.
Michelle Donelan
Q You have spoken before about people losing their livelihood for saying what they think is perfectly lawful. Are there any examples that you would be willing to share with the Committee?
Trevor Phillips: Some of these are public. There is the case of the Cambridge porter who said something that was regarded as disobliging on the issue of gender and trans. Eventually, he had to step down from his role. There is the case, again, of Noah Carl at Cambridge. I suspect that Professor Biggar will probably have more examples to offer you, but if you would like I can certainly follow up with a note on that.
If I may respond honestly, my view is that the bigger risk is not that there are a few celebrated, or notorious, I should say, cases of people who have lost their livelihood; the bigger issue for me is that what is happening now is that people can see that they could lose their livelihood and therefore do not engage in what universities are for, which is free and open debate and, even more importantly, unbiased, courageous inquiry. One of things that we know—this I cannot give you examples of, because I do not have permission—is that there are some lines of inquiry, not just in the humanities but in science, that are not pursued because people who would pursue them think that it would be too controversial.
Perhaps I can give you a very simple example. Twelve years ago, when I was in public office as chair of the Equality and Human Rights Commission, I tried very hard to get a university or some other research body to do some work on the academic success of children of Chinese heritage. For two years we offered money. No institution would take up that research project because they said—I had this from three or four of them—that it would stigmatise other ethnic groups. I thought that was an important thing to understand, not least because other minority groups and, we now know, the majority community in this country, could learn from the success of that group. Up until now—right to today—we have no knowledge of why that group is so consistently successful academically. That surely is one of the losses we are seeing because of what I may have called creeping censoriousness.
Michelle Donelan
Q I have one last question to both panellists. The Bill is designed to protect lawful free speech, but some Opposition commentators have argued that it would protect unlawful free speech. Could you both clarify whether you share that view or whether you believe that the Bill would protect only lawful free speech?
Professor Biggar: My view is that the Bill would protect lawful free speech. The law as it stands prohibits speech that would incite violence or racial hatred or hatred against people for their religion and so on, and the Bill would not change that. We have already heard concerns about holocaust denial. Under the law as it stands, in the light of European Court of Human Rights case law, holocaust denial is not unlawful; it is just that if you give expression to such a view and you are denied a platform or suffer some detriment, you cannot claim the protection of the law. It is a delicate position. I do not think this Bill is going to protect unlawful speech.
Michelle Donelan
Q Do you share that view, Trevor?
Trevor Phillips: Yes. I do not really see what in the text of the Bill would produce that result. I think you would have to construct a very outlandish scenario for that to happen.
Lloyd Russell-Moyle
Q Trevor, you mentioned the porter. That would not be covered under the Bill. Do you think the Bill therefore needs to be expanded?
Trevor Phillips: Forgive me—you say I mentioned the what?
Lloyd Russell-Moyle
The porter is not an academic member of staff. A porter is a non-academic member of staff, without academic privileges. My understanding is that they would not be covered under the Bill. Are you suggesting that the Bill would need to be expanded to all contractors? Most porters in most universities now are not even necessarily employed directly by the university; the services are subcontracted out. Are you saying that it should be expanded to all contractors—to everybody that the university has a relationship with?
Trevor Phillips: No. The individual was an employee, actually, in the same way as an academic.
Lloyd Russell-Moyle
Q Not an academic employee.
Trevor Phillips: I am not a lawyer, but I do not think in terms of employment law there is any differentiation.
Lloyd Russell-Moyle
Q I agree with you that it is very worrying when people are dismissed for expressing views that do not relate to their job—a porter expressing a political view one way or another should not make a difference. If it does extend to the porter, which I am not sure it does, why should they get different protections from a porter at a hospital or a supermarket? Should we not be talking about extending protections, if they are needed, to all peoples in all workplaces?
Trevor Phillips: I think I understand the premise of your question, but I do not really agree with it. The expression of an opinion, one way or another, should be protected, whatever your job. The reason that this particular individual ran into difficulty was not because he was not being asked to lecture students. He was a Labour councillor, and I think it was in that context that he uttered the views that were thought to be disobliging. The point here is that the censorship that is taking place is not just to do with what academics may be saying to their students in tutorials or lectures; the censorship here is being exercised against any individual who happens to be associated with the institution who may or may not take a view or write something in any guise.
We can take the case, for example, of Noah Carl. I do not agree with anything Noah Carl has written, by the way. However, the criticism of him was that he wrote an article in a journal that also published views that were disobliging; it was not actually about his views. The point here is that I do not think there is anything in this Bill, or indeed the harm that it is designed to remedy, that separates the questions of what might be said as part of a job and what might be said as a human being.
Lloyd Russell-Moyle
Q The Bill gives protection for people to express things within their field of expertise. That means academic staff, not people who profess views outside of their expertise; they could still suffer consequences according to the Bill. That is where we are.
To both of you, I am interested in who does the judging of where the limits of free speech are. You could say something controversial, something that somebody thinks is Islamophobic or antisemitic. In your view it might not be and you have the right to express that view, but surely there is a right to a backlash and for people to express their distaste for distasteful views. There is a right to offend, but there is also the right to be offended. How do you stop a chilling effect when stopping people’s right to express their distaste?
Professor Biggar: Of course people have a right to express distaste of any views they wish. My own view is that universities ought to be in the business of teaching future citizens to express their passionately held views civilly, rationally and robustly, without abuse. If universities do not train citizens to be civil in that fashion, we can expect violence on the streets way down the line, to be melodramatic. Within the law, it seems to me that universities should impose norms of civility on either side. But it is not just a matter of people expressing their distaste at gender-critical feminists or critics of Black Lives Matter or people who think the British empire was not entirely wicked. It is not just that; it is the use of political means to apply political pressure—not rational but political—and it is the use of aggressive abuse.
Lloyd Russell-Moyle
Q How do you limit people applying political pressure? What you are saying is that the regulator needs to come in and say that the university has not limited other people’s ability to apply political pressure. I get that universities should have guidelines about balance and civility, but if it breaks down and the regulator steps in, what is the regulator actually checking? That the university has not restricted other people’s political expression?
Trevor Phillips: There is no right to a backlash. In common law there is a right to protest in this country. I would have gladly seen something in this legislation that referred to that, but the truth is that we do have that right. The issue here is of culture and resilience. For far too long—10 years—I was chair of two regulators: the Commission for Racial Equality and the Equality and Human Rights Commission. Most of our work was not prohibitive; most of it was either permissive or educational. The EHRC publishes books and books of guidance, some statutory, most non-statutory. The aim of that kind of guidance is not to impose threats and hammers, but to give some idea of what the right norms are. That is why this is so important. There is a variety of informal ways in which freedom of expression can be suppressed without breaking any law that you could possibly draft.
Alongside the legislation, there has to be a programme of action to protect diversity of opinion within the higher education sector. That is part of the role of the regulator. The regulator is not a censor; it is there to moderate behaviour, and there are different ways in which that regulator might moderate behaviour. Some of it will be by prohibition and law, but most of it, for every regulator, is through guidance, encouragement, comparison, publication of best practice, and so on.
We ought not to get into a conversation where we simply think of this regulator as a revived Lord Chancellor, with his or her blue pencil, swooping on every campus, looking out for bad guys. The big part of this regulator’s work will be publishing work that demonstrates best practice and the code by which university authorities, and those who are under their aegis, can best guarantee and promote diversity of opinion and freedom of expression.
Felicity Buchan (Kensington) (Con)
Q One of my concerns is self-censorship and the degree to which it already exists, not only among the academic body but also among the student body. By definition, it is quite difficult to measure self-censorship and the extent to which it exists. Could you outline how large a problem you believe it to be?
Professor Biggar: You are right that, by its nature, it is hard to detect and measure, but there is plenty of anecdotal evidence, and I can tell you from my own experience. The clearest evidence of fear and self-censorship among academics was mentioned by Arif Ahmed earlier: his experience in Cambridge of spending a month trying to get 24 academics to put their heads above the parapet to sign a bit of a paper backing a motion against university policy. It took him a month to get 24 people to do that, but when the vote was held by secret ballot, it went overwhelmingly against the university, by several hundred academics. When those academics were liberated to express their views in secret, they did it, but they would not do it in public. That is one instance, but I think it is a signal instance. I urge you not to underestimate the degree of fear, even among senior academics.
Trevor Phillips: Yes, I agree with Professor Biggar. It is pretty difficult—like proving a negative. People who are too frightened to express their opinions will not tell you that they are too frightened to express their opinions. However, we do know that there are many examples.
Personally, I am a bit less concerned about the issue of meetings not being held and so on, and far more concerned about the extent to which academic and intellectual inquiry is being curbed by a culture that says “This thing will be controversial and too much hassle. I’m going to put my effort into something that nobody’s going to argue very much about.” That, I think, is a real, huge danger for the higher education sector in this country. We have lost what the Americans would call the “speak up culture”—the pleasure in disputation and the belief that testing arguments will always improve the state of knowledge. If there is a job for the regulator, it is to restore the confidence of all the members of university communities that it is okay to take a view; that, essentially, it is okay to say things that you know might offend other people, if you believe them to be correct. I do not think we want to encourage gratuitous insult or unnecessary offence, but above all, our institutions are there to encourage intellectual inquiry.
One practical step that might be embodied in the guidance, if not in the legislation itself, is that the default position in universities when it comes to meetings in particular is that they should always be open to all members of that community, so that every point of view is open to challenge. That is at the heart of this: there should be a culture of challenge. Secondly, what we have tried to do at Index is to help students to learn the habits of resilience that allow them to participate in those robust debates.
Felicity Buchan
Q How big an issue do you think self-censorship is among the student body, as opposed to the academic body?
Professor Biggar: Common sense would say that if grown-up academics are scared, then much more vulnerable students will be even more scared. I mentioned anecdotes. You may know that I got myself into trouble four years ago about my project on colonialism in Oxford, as a consequence of which the Oxford Centre for Global History mounted an official boycott of my project. I then had an approach from a junior research fellow—not a student, but a very junior, insecure academic, without a full-time career ahead of him—who said he agreed with my views and he would like to attend my conference, in May 2018, but would do so with two conditions. Those were that his name appeared nowhere and his photograph appeared nowhere, because he shared an office with two people who had signed one of the three online denunciations of my project. He worried about the future of this career and that he would be punished if they knew that he was associating with me.
That is one instance, but there are others. If that is the case with a junior academic, who is less vulnerable than a graduate student or an undergraduate but still very vulnerable, you can be sure that there are students who are biting their tongues lest they get marked down by their professor. Observe how some professors behave in public in terms of abusing those who disagree with them. If I were a student of some of those professors, I would be very careful. If they can behave that way to other academics, you can be sure that they can behave that way to those beneath them.
Trevor Phillips: Very briefly, most members of the Committee will not know this, but many moons ago— 40 years-plus—I was president of the National Union of Students. On the executive that I led, there was a broad range of opinion, including Conservatives, Liberal Democrats and people who were, believe it or not, way to the left of me. Never a day went by without some ideological dispute or argument breaking out in public. One of the things that strikes me very forcibly is that when I go to campuses and when I read about student politics, there does not seem to be that range of opinion and argument going on on campuses and in student politics. It is not my business any more, but I find that disappointing. I can only read it as the sense, not so much that people are intimidated, but that they just do not think it is worth having the argument. That is very disappointing, because that is where some of our cleverest and smartest people, some of whom are sitting in this room, and some of whom share the Benches on both sides of the Commons, have come from—from that culture of disputation and argument, with a lot of robustness, but a level of respect. That does not seem quite to be the case today.
Emma Hardy
Q I would like to return the focus to what is written in the Bill, rather than to re-argue the Second Reading arguments on the merits of whether we should have a Bill or not. Professor Nigel, you wrote in the evidence you gave us, that as the Bill is written,
“it fails to protect expressly the freedom of students and academics to voice critical opinions about their own universities”.
You highlight the concern around the narrowing of academics to their field of expertise. Could you expand on why, as the Bill is written, what we could have is a narrowing of that freedom of academic speech?
Professor Biggar: Yes. That qualification—within their field of expertise—is a hostage to fortune and could have the reverse effect of what is intended. For example, if my academic freedom were confined to my expertise, strictly understood, I am a theologian, so if I wanted to protest about policies of decolonising curricula being rolled out in a rather authoritarian fashion by my university, it could be said that as a theologian, I have no standing—what do I know about colonialism? It is not my field; I am not a historian—or if I wanted to criticise some aspect of the general policy of my university, it is not within my expertise. It seems to me that that phrase needs to be removed, so that academics are free to make their views known on any matter that bears on their institution.
Emma Hardy
Q Further to that—I highlight this for Government Members, because they seem to be a little confused about who is covered by the Bill, so I refer to the Taylor Vinters submission from James Murray; it might be worth your reading it. That evidence says that
“one would not want the situation where the free speech of a large group of vociferous protestors is weighed as having more importance than the freedom of an academic”.
It talks about how the Bill is written, giving primacy to freedom of speech over academic freedom. I wondered if you had any concerns about that, or any points about that: how, as the Bill is currently written, we could see a limitation of that academic freedom because of the primacy of the freedom of speech.
Professor Biggar: I cannot help you much with that in detail, except that I think academic freedom needs to have equal standing, because free speech and academic freedom are not the same things. Did you understand that?
Emma Hardy
Q Yes. Just to quote from the submission,
“it is arguable that freedom of speech would take primacy over academic freedom when the duty is balanced in practice (i.e. you can read the duty as follows: take particular regard to the importance of freedom of speech when taking reasonably practicable steps to achieve the objective of securing academic freedom).”
Would you be recommending, therefore, that the Bill as it is written is addressed to deal with this imbalance?
Professor Biggar: Yes, I would.
Emma Hardy
Q Thank you. Trevor Phillips, you have referred a number of times to something being “within the law”. In the evidence given by the University of Cambridge—can I say that when we have an Oxford professor sat here with us?—they mention that the Secretary of State for Education said on Second Reading that
“the right to lawful free speech will remain balanced by the important safeguards against harassment, abuse and threats of violence as set out in the Equality Act 2010, the Prevent duty and other legislation, none of which we are changing.”—[Official Report, 12 July 2021; Vol. 699, c. 49.]
The University of Cambridge is recommending that that statement, or words similar to it, are included—that clarification is included—on the face of the Bill, and that a steer is provided on how the different duties are to be balanced in practice. Would you support something like that going into the Bill?
Trevor Phillips: No. This is premised on the idea that there is a quantum of freedom of speech that can be shared out between different parties. I fundamentally disagree with that: I think that freedom of expression, rather like love, is infinite, and that you do not balance one lot of freedom of expression against another lot of freedom of expression.
Emma Hardy
Q Just to clarify, I was quoting the Secretary of State, who said that
“the right to lawful free speech will remain balanced by the important safeguards”.
Are you disagreeing with the Secretary of State that we should have this?
Trevor Phillips: I have not read the speech by the Secretary of State, but if he put it in the way you have just put it, yes, I am.
Professor Biggar: Could I respond to that briefly? Certainly, there will be a balance, but the crucial question is, “What kind of balance?” It seems to me that that needs to be a matter for negotiation between the Office for Students, via its director, and universities, because this law will change the legal environment. There needs to be a shift in the dialogue.
Emma Hardy
Q On that point, would you want to put some kind of balance, or evidence about the balance, within the Bill itself as written, as also recommended by the Free Speech Union?
Professor Biggar: I am not sure what that would achieve. I would not object to it, but it does not tell you what the balance is going to be, which is the really important question. A statutory requirement of balance would not do any harm.
Fiona Bruce
Q Thank you very much, Sir Christopher. It might be very helpful if we could continue this discussion, because I wanted to draw out from you, Professor Biggar, two points where you say that the Bill could be improved. Could you perhaps give us a little more information about your thoughts on this comment:
“In its current form, the Bill would still allow discussion in an academic context to attract allegations of having the effect of harassment under section 26 of the Equality Act 2010.”
Could you elaborate on your thoughts, please?
Professor Biggar: First, the Bill is not proposing to amend the Equality Act. That is quite clear; however, there is tension between the requirements of the Equality Act and the duties to secure and promote free speech and academic freedom that the Bill would establish. The tension arises around the definition of harassment. It is quite right that those with protected characteristics should be protected from harassment. The problem is that harassment is often interpreted by universities—not so much by courts—in such a fashion that dissent from, disagreement with and criticism of becomes harassment. That is obviously a dampener on free speech. The Bill will not resolve that, but I am sure that the OfS, through the director for freedom of speech, will have to discuss with the university how the Act is interpreted in the light of this legislation. The effect of this legislation would be to underscore the free speech and academic freedom elements, and might result in a more conservative interpretation of the Equality Act.
Fiona Bruce
Q I wonder whether you could consider whether the words “within the law” at the very start of the Bill, which is such an important clause, could perhaps be replaced by the words “without unlawful interference”. Would that help to address the problem of the, very often, broad interpretation of harassment, which effectively appears to bring speech that is within the law outside it?
Professor Biggar: That is a very fine distinction, the significance of which escapes me for the moment.
Fiona Bruce
Q The problem that you are raising is that there is quite a broad range of statements that could be not protected by the Bill because they are considered harassing. That is an issue that perhaps needs to be looked at.
Professor Biggar: If that is a tighter definition, then yes.
Fiona Bruce
Q Thank you. The second point that I want to draw out is that you say that the Bill does not give academic staff access to affordable justice via an employment tribunal in the case of failure to be appointed. Do you think that the legal remedies proposed in the Bill are sufficient? Perhaps you could again talk about where the right to go to an employment tribunal might help in certain situations.
Professor Biggar: As I understand it, at the moment the Bill allows civil proceedings, but appeal to the courts is expensive and risky. It seems to me that academics who have lost their job ought to have readier access to lodge a complaint than through the courts. I am not a lawyer, but that seems to me to be the case.
Fiona Bruce
Q Very briefly, in your experience, you believe that there is a real issue to be addressed in terms of freedom of speech and loss of employment or tenure.
Professor Biggar: Yes. The case of Noah Carl, as I mentioned earlier, is an egregious case. I cannot talk about the details of the case, but from what I have read a request has been made about it, and he did not have ready recourse to remedy.
John McDonnell
Q David Simmonds registered an interest as an honorary fellow of Birkbeck—so am I. I did not realise that it was a registered interest, or that anyone would be interested, but anyway. Trevor, this is for you really. You have raised the issue of Chinese students, which I think is important. I want to explore it. One of the issues around legislation is ensuring that you do not build into it contradictions that will come back at a later stage and cause problems. I am a campaigner for exposing what is happening to the Uyghur people, which some are describing as a genocide.
My concern is this: I think you are right about the influence on Chinese students at the moment. The National Union of Students has a list of organisations that reflects Government views about terrorist organisations, and so on, that you would not wish to use any form of premises to promote their ideas. For example, in the Uyghur case, if the students through the National Union of Students or their local student body consult or even ballot and come to a view that they do not wish organisations associated with the Chinese Communist party to use their premises to promote or defend what is happening to the Uyghur people, which many now believe to be genocidal, surely there must be a mechanism in the Bill to enable that expression of view to have effect. Those sorts of meetings could intimidate Chinese students on university campuses and elsewhere.
Could the Bill could be improved by having some form of mechanism to enable that element of flexibility? The Office for Students—the director for freedom of speech—could ensure that there is a proper and effectively exercised mechanism to ensure that such consultation takes place. Therefore, we could have a range of limited exemptions where we do not wish in any way to use resources—whether student union or university resources—to enable the promotion of something that might be speculative to some, but is certainly not to some of us, which is the genocidal attack on the Uyghur people. I put the question to Trevor, as he raised it—it is a real-world issue for many of us.
Trevor Phillips: It is a really important point. I have an immense amount of sympathy with what you have just said. Were I a student today, I would without any question whatever be campaigning to have a student union decision that any facilities under the control of or paid for by—although I know they do not have union subs any more—my student union were not used in any way, however indirectly, to support the actions of the Chinese Communist party in Xinjiang. In so far as that is concerned, I am completely with you. I do not think that you need legislation for that. Every student union has a general meeting or a council that can decide that that is what it wants—
John McDonnell
Q Trevor, my point is about the contradiction in this legislation. We could have legislation that forces the student union to give a platform to the Chinese Communist party to advocate the genocide of the Uyghurs.
Trevor Phillips: I do not think that there is anything in the legislation that will force a student union to do that. What I would agree with is that it is entirely possible that a group of three students might decide that they want to do something like this on campus. I get that. I am afraid that I have to say that if that is what happens, that is what happens. The student union can say, “Well, you can’t do it on our premises”—I think that is fine.
John McDonnell
Q It cannot under this legislation. Under this legislation, that would be challengeable.
Trevor Phillips: I do not think that the legislation will compel any part of a university to agree to let anybody speak on its premises. I do not think that that is the case here.
John McDonnell
Q But it is open to challenge.
Trevor Phillips: I am not going to dodge your question, John. I am quite straightforward about this. The student union can say, “No, we’re not having it”, but, ultimately, if a group of individuals—academics and so on—say, “We want to have this person from the Chinese embassy speaking to explain what they are doing in Xinjiang”, I cannot in all conscience agree that it is a university’s duty somehow to prevent that happening. What I will say, coming back to my earlier point, is that, unless there was some compelling reason otherwise, such a meeting should always be open to all members of the university community so that that point of view is under challenge. In the end, that will be a more valuable pathway than simply saying, “We’re going to ban you.”
John McDonnell
Q The point you made earlier, which I agree with, is that some element of the right to protest should be put into the Bill then.
Trevor Phillips: If one could find the right formulation, I think that is worthwhile.
Charlotte Nichols
Q My question is to Mr Phillips, and is particularly around some of what we discussed about the porter you mentioned. Fundamentally, this is a very thin Bill. As Professor Biggar mentioned, there are clear implications for its interaction with other existing legislation, not least the Equality Act. Where it talks about being within the limits of lawful free speech, that does not extend the existing rights particularly. We have heard about all sorts of potential unintended negative consequences, but do you believe that the Bill, as it is written as a thin piece of legislation, is actually just about moral panic about the Equality Act and young people being too woke for the Government, as opposed to a genuine issue that needs tackling in this way?
Trevor Phillips: Point one is that I do not think one ought to value legislation by the weight of pages. I was partly responsible for the Equality Act and, before that, the Greater London Authority Act, which are two gigantic pieces of legislation. I would not say that either carried the same weight as some rather slimmer pieces of legislation.
Secondly, I think your point is, why are we bothering? The answer is that, to go back to what I said earlier, if we could depend on the university authorities to do their jobs to protect the rights of their staff and students, I would say that, on balance, you guys have better things to do. However, it has been demonstrated again and again in the last four or five years that, by and large, university authorities are abdicating that responsibility. To give you an example, Cambridge has been mentioned several times. A couple of years ago, I appeared on television. I will not bore you with what it was, but afterwards, a member of the Cambridge faculty tweeted that I was a racist. I wrote to the pro-vice-chancellor, who is responsible for discipline, and said, “Is it okay for people from Cambridge to say this kind of thing about people they do not know and have never met, and to put it all over social media?” In summary, the response I got was that the university could not really do anything to control or deal with such behaviour. I said to them that I have a relative who is a senior person in one of the Cambridge colleges; Cambridge University said that if someone were to call her a rude name in Trumpington Street in Cambridge, they could do something about that because she is a member of the university, but if they were to call my wife, who is a Cambridge graduate but not a member of the community, the same filthy word, they could not do anything about that.
My point is very simple: if the university authorities were doing their job, you would not be having this session. But they are not, and the truth is that people are losing their jobs. I come back to my point—I am sorry to reiterate it— that the spirit of intellectual inquiry, which is what makes our higher education sector attractive and successful, is essentially being trashed. That has to be stopped.
Charlotte Nichols
Q To go back to your point about a Cambridge academic accusing you of being a racist on Twitter and universities not doing their job, a lot of the evidence we have heard seems to suggest that universities should have some sort of control over what random people on the internet say. Professor Stock mentioned the idea that she was not being sufficiently promoted, in her view, by the university. This legislation does not actually do that.
The Chair
I am going to interrupt because we are running out of time—we have half a minute. I am going to ask Professor Biggar to say something.
Professor Biggar: Just in response to your claim that the Bill really does not make much difference: at the moment, there is no unequivocal duty on universities to secure and promote the academic freedom of their staff. The Higher Education Research Act 2017 does impose a duty to secure academic freedom, but imposes it on the Office of Students vis-à-vis universities, whereas it is about institutional autonomy. At the moment, there is no unequivocal duty on universities to secure and promote the academic freedom of staff, and that would be one single improvement over the current situation that the Bill would achieve.
The Chair
The time is 25 past and we have to close this session. Once again, it has been a really good session and we are indebted to our witnesses. I am grateful to Mr Phillips for reminding me of my student politics days, when back in 1969 I had the lead letter in The Daily Telegraph, headed “Free speech in universities”, when I criticised our university vice-chancellor for trying to prevent me from inviting a particularly prominent Conservative politician to the university. It has brought all that back to me vividly. Thank you very much.
The Chair adjourned the Committee without Question put (Standing Order No. 88).
Adjourned till this day at Two o’clock.
Higher Education (Freedom of Speech) Bill (Second sitting)
(2 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Committee consisted of the following Members:
Chairs: Sir Christopher Chope, † Judith Cummins
† Bacon, Gareth (Orpington) (Con)
† Britcliffe, Sara (Hyndburn) (Con)
† Bruce, Fiona (Congleton) (Con)
† Donelan, Michelle (Minister for Universities)
† Glindon, Mary (North Tyneside) (Lab)
† Hardy, Emma (Kingston upon Hull West and Hessle) (Lab)
† Hayes, Sir John (South Holland and The Deepings) (Con)
† Holden, Mr Richard (North West Durham) (Con)
† Johnston, David (Wantage) (Con)
† Jones, Mr Kevan (North Durham) (Lab)
† McDonnell, John (Hayes and Harlington) (Lab)
Nichols, Charlotte (Warrington North) (Lab)
† Russell-Moyle, Lloyd (Brighton, Kemptown) (Lab/Co-op)
† Simmonds, David (Ruislip, Northwood and Pinner) (Con)
† Tomlinson, Michael (Lord Commissioner of Her Majesty's Treasury)
Webb, Suzanne (Stourbridge) (Con)
† Western, Matt (Warwick and Leamington) (Lab)
Kevin Maddison, Seb Newman, Committee Clerks
† attended the Committee
Witnesses
Professor Stephen Whittle OBE, Professor of Equalities Law at Manchester Metropolitan University
Smita Jamdar, Partner and Head of Education at Shakespeare Martineau
Thomas Simpson, Associate Professor of Philosophy and Public Policy, University of Oxford, and Associate Fellow at Policy Exchange
Dr Bryn Harris, Chief Legal Counsel at Free Speech Union
Public Bill Committee
Tuesday 7 September 2021
[Judith Cummins in the Chair]
Higher Education (Freedom of Speech) Bill
The Committee deliberated in private.
Examination of Witness
Professor Stephen Whittle gave evidence.
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.”
Sir John Hayes
Q I want to follow that up. In the light of your advice, Mrs Cummins, I declare my interest as a part-time professor at Bolton University, as recorded in the register. Professor, you talked earlier about ideas that are “so off the wall and out of the water”—your words, not mine—but is that not the nature of all academic inquiry, its cutting edge? To disturb, to alarm and perhaps even to shock, is that not the character of that kind of inquiry?
Professor Whittle: Not all research, of course. Not all research is out there to alarm, to shock and to tear down the wall, but a body of research is. We have to have an opportunity to do what I would call blue-sky thinking in the humanities as much as in the sciences. My own research would have got nowhere if it had been left to the people who thought they knew how the system worked—it was completely off the wall, but it brought new ideas and presented the evidence for those changes.
There will, however, always be concerns that some students and some researchers will always want to do work that is very problematic. For example, I am thinking of a student who applied to do a PhD but never actually got his research proposal approved before he presented his dissertation. The dissertation, which looked into the far right in Europe, was basically a presentation of why we should all move to far-right politics. It was not going to go anywhere. I could not ever have signed it off, because he had not gone through the proper processes. If he had, I think he would have come up with different answers, but we will never know.
I do not say to the students who are researchers, “You shouldn’t do this,” or, “You shouldn’t do that,” but I do say, “You need to think about what it is that you are trying to achieve. Are you just trying to make a statement, or are you trying to contribute to the academic debate and to improve the world in which we live?” Some just want to make a statement. I think the research that we referred to this morning on detransitioning was exactly that—a piece of research that was preset to provide an answer that the academic wanted—whereas other research is out there to explore the issues properly.
We have academics who are reviewing research all the time. One of my primary functions is to read research papers of various forms, to make those judgments as to whether the research is sound or could be sound, and to decide whether it will receive support from me, or whatever else.
Michelle Donelan
Q Thank you very much for sharing your experiences, Professor Whittle. I am interested to hear whether you have spoken to any academics or students whose experiences have differed from your own. We heard from Professor Stock this morning about, in effect, a threshold that academics should be expected to experience. Some of them, such as you and her, may have pushed past that and almost ignored the pressures on them and the challenges that they faced, but not everyone is prepared to do that, hence the chilling effect. I would be interested to hear whether you think there is room for manoeuvre there and whether we need to open up some of these academic forums.
Professor Whittle: Absolutely. I absolutely believe we need to really think, particularly in terms of recruitment and promotion, how we do it. There is an insularity, particularly in promotion, within universities and between universities that prevents people who speak out, or seem to be doing something that is not common enough, getting those opportunities for promotion.
Manchester Met has been incredibly supportive of me and my work over the years, but in 27 years I have never been shortlisted for a job, which means I have never even got to the point of sitting in the chair and being interviewed. It is those things. I know I am facing the concrete ceiling in that because I am doing research that is considered to be a minority interest. I actually do not think I am. I think I am talking about core human rights and about how identity fits within that legal framework of core human rights, but the universities and university departments are incredibly cautious about taking somebody on who might be considered too challenging to a sort of mantra of “we are a safe space.”
Michelle Donelan
Q How can you be 100% confident that legislation is not the right answer to tackle the problem that you have just identified?
Professor Whittle: There is different legislation. This legislation focuses specifically on how universities promote free speech, but most specifically on what they do to make sure that speakers, academics etc. speak, which means what they do to stop other people disturbing that space.
In terms of promotion, opportunities and things like that, I think it is not legislation. We need a real sea change in how universities think about the academics who work for them and what they are trying to achieve. I certainly think that the promotional system that we have, which consists of small circles of people supporting certain other small circles of people, is too narrow. We need external experts in areas, to be prepared to call people out from other disciplines to look at professorial applications, say, and to bring a range of voices to that.
I like the fact that my own university is thinking in terms of readerships not just for pure researchers, but also for people who look at the pedagogy of teaching within universities and who are interested in improving teaching quality and how we get ideas over to students. That is a start, by not just saying, “There are these ones who research and these ones who teach,” but thinking that we cross over constantly.
This piece of legislation seems to me to be unnecessary because it is about controlling the external to the university. Can a university do that? How can a university stop people protesting, although they could bring on security and bar people from campus? The whole nature of student life is to protest, or it should be, anyway. I sometimes think they don’t do it enough nowadays.
Universities already have an obligation in relation to freedom of speech. This creates an obligation on them to stop other people’s freedom of speech, and that is the problem. It will narrow freedom of speech overall. It is a fine balance, but I don’t think stopping student protests or external anger about what academics do is going to make, a, academics feel any safer or, b, improve our freedom of speech.
Michelle Donelan
Q Do you think it would be useful at this moment in time to clarify that the Bill does not prevent protest of free speech? I would be happy to have conversations offline or further written evidence on that.
Professor Whittle: It does not appear to, but combined with other legislation that has come in and the whole idea of what universities can do? What can a university do to stop people saying, “We don’t want this speaker.”? Can they stop it on Twitter? No. Can they stop it on Facebook? No. But they can stop it on the ground within the space of the university. I actually think that that is a much more valid place to hear student protests than on Twitter.
Emma Hardy
Q Professor Whittle, I want to turn again to the evidence submitted by the University of Cambridge, which highlights the tension that the Bill presents in balancing free speech with the existing legislation in the Equality Act 2010 against harassment, abuse and threats of violence. As I mentioned to Trevor Phillips in the last evidence session, the Secretary of State verbally promised that the right to lawful free speech will remained balanced by important safeguards, but the University of Cambridge is suggesting that that should be in the Bill, and the Bill should present greater clarity on where the line is drawn between existing legislation around harassment and what the Bill proposes. I wondered, with your experience in equalities, what your thoughts were on that.
Professor Whittle: 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. The Bill is interesting in that you do not have to have any standing to use the potential new provisions within it. I think that that is equally problematic, because it means that literally the butcher down the road could decide that they do not want the speaker, or could make a complaint that a speaker had had their freedom of speech challenged.
I think that that is very problematic, but I accept that it should be absolutely clear in the Bill that this is not about stopping legitimate student protest. There is a difference between legitimate and illegitimate protest, and illegitimate protest is always illegitimate in my view and should never be perpetrated, except in the direst circumstances. Legitimate protest, which includes shouting, making a noise and being an irritating bloody nuisance is just part and parcel of academic life. As I say, I have faced it in my own lecture theatre and I have not felt comfortable, but I did not feel so challenged.
Emma Hardy
Q That is really interesting. So you would want to see amendments to the Bill that gave students the right to continue to protest, and not therefore fall under the guidance of the Bill.
Professor Whittle: Absolutely. Legitimate protest within universities is an absolute must. If we make it different from the rights externally, does that somehow create a different space for universities? Universities are, on the whole, still part and parcel of the public sphere—not all of them, but most of them. They do not have the same rights, for example, as a pub landlord to say, “You can’t come in here,” but they have certain levels of control on their sites. To just bar student protest, or to make it impossible, would drive protest into those online spheres, and I think it would be much worse there.
Emma Hardy
Q Finally and quickly, I think I have almost achieved the impossible in that so far every academic has agreed. Do you share the concern around the change in wording from the original wording to insist that academics speak only about what the Government define as their field of expertise, in terms of academic freedom?
Professor Whittle: Absolutely. What do we count as our field of expertise? As a lawyer, as an activist, as an individual, as a parent, my expertise is widespread, and I bring all of those things into my academic life. If you told me that I could only speak on equalities law, I would say I have just done a big presentation in relation to the European Union and rights across the European Union. Does that not include me? Can I not speak on that? When the economists have a panel on free trade, can I not come and talk about how it impacts on different people’s rights across the world? Of course I can—that is part of our conversation, and I think that most academics would say that we do not sit in little boxes. We read widely; we bring all these ideas together. If we are very lucky, one day we will become Noam Chomsky and produce a great book, but most of us will just retire.
Mr Richard Holden (North West Durham) (Con)
Q Thanks, Professor. It has been really interesting to hear what you have to say. I was particularly struck that you said you had never felt that you had been unable to speak on a topic. Do you understand that 35% of academics in the UK, roughly twice the average of that in the European Union, according to a recent study, feel that they have had to self-censor their remarks? I understand you personally might feel that you can push ahead, but do you understand that other academics might feel that they cannot?
Professor Whittle: Yes, I accept that. If we go back 15 years to people complaining about the noise in the library, I stood up and said, “Why don’t you just ask them to stop? That is what I do.” They said, “It is all very well for you. You feel brave enough to do that.” I do not feel any braver than anybody else, but I am going in the library to work and I can ask the students to be considerate and quiet and, on the whole, I get a certain amount of listening to and respect out of that. If academics do not feel that they are able to speak out, I am very sorry they feel like that, but part of me wants to say, “Pull your socks up and get on and do it, because nothing is that frightening.”
I have spoken across the world, in different places, from Moscow to China and India, in circumstances where many people would go, “Oh my God—what are you doing?” but I have always received, on the whole, respect. There has been some heckling, but I handled it and never felt that my life was in danger in any way, shape or form. I sometimes have felt that my career has ridden a little bit close to the edge, but, as I say, I accepted a long time ago that other universities were not going to interview me, so I might as well make my mark here and I think I have been able to.
Mr Holden
Q You are sort of saying, Professor Whittle, that you have essentially accepted a curtailment of your career in some aspects because you have been prepared to be outspoken and not self-censored on some of the topics you talk about, which have been quite out there. Would you say that is fair?
Professor Whittle: I do not think people have not considered me for my appointments because I am outspoken. I think they have not considered me for appointments just simply because I am trans. I have no doubts that it is just because I am a transgender person and I do transgender politics and they do not want to be pigeonholed like that.
Mr Holden
Q Do you accept that other academics might feel that they cannot speak up about topics of interest to them academically—topics that they want to talk about in that broader academic freedom—because of their careers being curtailed, due to unorthodoxy, say, within an academic establishment?
Professor Whittle: I have accepted that some academics feel like that. I think they are wrong to feel like that.
Mr Holden
Q Of course. One of the interesting things that I thought that we might agree on was where you talked about wanting to promote what the university is doing in terms of freedom of speech. I thought that was an interesting and important point. That promotion of freedom of speech is a big part of the Bill—not just protecting it, but advocating for its promotion. Would you support that one aspect of the Bill?
Professor Whittle: Completely. I do not think it has to be legislated; it should be in university charters almost from the beginning. As universities, we promote freedom of speech. We participate in our local and national communities and we talk about what we are doing. We are completely open and frank about the research, information and teaching that we do, and we make it widely available to the public.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Q As in the last session, I declare my interests. I am a trustee at the University of Bradford Union. I work with the University of Sussex and UCU, the lecturers’, professors’ and academics’ union.
I want to ask about employment practices. We know that there is an ongoing problem. We heard earlier on today that there is a problem with academics often not being given tenure, and too many people being on short-term contracts. That means they constantly think about promotion and saying the right thing rather than producing the right academic work. Is that an area that you feel could be addressed? Would that help solve some of the issues around confidence in people speaking out, rather than trying to put legal duties here and there?
Professor Whittle: Absolutely. I think there is a great deal of insecurity for younger academics, and even some older ones who have been on the short-term contract system forever and a day. We see those academics constantly losing teaching, gaining teaching, and being asked at the last minute to do stuff without any security of tenure. I think that is really problematic because people try to second-guess what they might need to do to get that security.
Within that system, there is a lot of pressure for people to do often what we might call the teaching, marking and examining duties; not enough emphasis is given to their personal development through an academic career, so they miss out on the opportunities, the time and the support—often financially, say—to go to conferences or to do research because they have not got a tenured position of some sort. That is really problematic, and it has a knock-on effect. Academics often feel disempowered. Again, they try to think, “What do I need to do that will satisfy the system, give me a chance to get some research done and make sure I provide good quality teaching?”
I work in a post-’92 university, so I am not at a university that ever gives sabbatical time, for example. I have done most of my research at weekends, holidays and things like that, so I fully understand the problem that exists within that.
Lloyd Russell-Moyle
Q Might a duty on universities to provide security in terms of contracts for academics to express different views help you so that you had security and you knew you would be offered interviews and promotion opportunities, but so would people of alternative views? At the moment the Bill takes it by the tort and courts under contract law, but would employment law be a better basis for defining some of these rights for everyone?
Professor Whittle: Yes. I believe that there should absolutely be an obligation on academic employers not to misuse academics, and to properly consider them for permanent posts when they are available. They should not sidestep them and get external applicants always, but they should consider them. The right to apply and be seriously considered is a really important right that academics do not have. I would really like to see some way of embodying within people’s contractual rights or legal rights a right to be considered for the post if they have done the job.
One of the things I have really found distressing across the years is to watch academics do the work, for years sometimes, apparently satisfactorily, but not get the job at the end of the day. Often they do not get the job because they do not have the research background, but they have not had the opportunity to get the research background. Nobody has even asked them what they are doing in their own time, never mind consider it. Instead, they bring in somebody from outside with a research background and a year later I discover they will not teach that subject anyhow, so we are back to ground one. It is a bit despairing. I have said for years that we really must provide more security for young academics in developing their careers, whatever their views.
The Chair
If there are no further questions from Members, I thank Professor Whittle for his evidence and we will move on to the next panel. Thank you very much, Professor Whittle, and we wish you well.
We will now hear oral evidence from Smita Jamdar, partner and head of education at Shakespeare Martineau, who is also joining us via Zoom. We have until 3.30 pm for this session.
Examination of witness
Smita Jamdar gave evidence.
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?
The Chair
I thank you for that plea for clarification. I am happy for any Member to make a declaration at the beginning of each session, as making a declaration every time they speak seems excessive.
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.
Emma Hardy
Yes—sorry.
Smita Jamdar: I may have misunderstood; I do apologise. Yes, that is a concern. Built into certain types of court proceedings—judicial review, for example—is the expectation that you will first exhaust all alternative remedies, and that would include any internal remedies available under the complaints process. However, that is not the case in statutory torts; you could bring a claim outside the processes and the only thing that would then stand in your way is this—sometimes very vigorously encouraged—preference not to proceed with the court process but to go through the internal complaints process. However, you would still have issued and there would still need to be some reaction to that claim.
Emma Hardy
Q Would you therefore recommend an amendment to the Bill to make it explicit that local complaints processes should first be exhausted?
Smita Jamdar: Absolutely.
Michelle Donelan
Q I would be interested to know whether you think there are currently clear routes for individuals to seek redress where they do have their freedom of speech infringed on and restricted.
Smita Jamdar: The main route that you would see a student, for example, going through would be by way of judicial review. Judicial review has the advantage of allowing the court to make a declaration or requirement that the university should reconsider the case and, if necessary, readmit the student—they are entitled to go as far as that, but very often they will keep it to requiring that the case be reconsidered. They can also concurrently award damages, if you can prove that there is a loss associated with whatever has happened to you.
Our view, as a firm, is that if you had a situation where a student was excluded on the basis of exercising their right to freedom of speech, and it was a rightful exercise of the freedom and a wrongful interference with the freedom, then the clause permitting you to do that might also be regarded as a unfair term under the consumer contracts legislation, because you are losing a right that you have as a matter of general law. So routes are available. It is fair to say that the vast majority of these cases are probably dealt with at the internal appeals stage; I am not aware of a huge amount of case law that relates to students pursuing their claim. I think for academics it would be via employment tribunals.
Michelle Donelan
Q Do you acknowledge that judicial review is an expensive process, so it will exclude a number of people? You reference the internal process, but we have heard from various students and academics outside this Committee who have felt that the internal process has let them down. That is why we are bringing forward legislation: to assist and to acknowledge that the current process is not capturing all of those people.
Smita Jamdar: There are two answers to that, Minister: the first is that when we talk about the range of complaints that people are bringing under the overarching ambit of freedom of speech, they do reflect quite different circumstances. They might be people who feel that they have not been allowed to speak at an event; they might be people who feel that they have expressed views on social media and have then been disciplined for that; they might be people who feel that they have not had a promotion, or have been subject to a detriment, in their employment context. Judicial review would not necessarily be the right route for all those.
Is judicial review expensive? In comparison with the kind of litigation you could get into if you are dealing with a statutory tort—where there are days of witnesses giving evidence, assuming it goes all the way to trial—judicial review is not expensive. Civil proceedings of this nature can be far more expensive because they are so oral evidence and fact driven. That said, currently, if a student was unhappy with an internal process of a university they could also go to the Office of the Independent Adjudicator—they have got that route. The OIA would look at that because they can look at any act or omission on the part of a university. I do not know who you have spoken to about this, but I have not seen via the OIA’s own case studies many examples of people raising issues around free speech through them. That does make me wonder why that is not happening because that is a free and perfectly acceptable route through which to bring the kind of issues that people might wish to complain about.
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.
John McDonnell
Q I use this example. For a number of years I was in local government, as both an elected member and a civil servant. There have been cases within local government, such as inquiries with regard to the involvement of directors of social service in individual cases. Even though there have been inquiries and published reports, those reports have never had absolute privilege. There has always been the right of that individual to go to court to resolve any matters, including any elements where they thought they had been identified or any comments about their actions were seen as defamatory. I have not seen this before in legislation. Is it common?
Smita Jamdar: I do not know if I can answer whether it is common or not; I am not a defamation expert. From memory, there is something similar in relation to the OIA under the Higher Education Act 2004. If it is okay, I will check that after this and let you know in writing. If it exists, that would be the only place that I have seen it before.
John McDonnell
Q How will people have redress under this? If they were defamed, is there any right of redress? Is there any method of redress where there is absolute privilege like this?
Smita Jamdar: Again, that is something I would have to try and work through in my mind. If it is okay with you, I will give a written response to that.
Fiona Bruce (Congleton) (Con)
Q Good afternoon. Can I take you to the very first clause and the wording “reasonably practicable”? Do you think the duty to take “reasonably practicable” steps to secure freedom of speech is adequate? That phrase is used both for the governing bodies of an institution and for student unions, particularly bearing in mind that it is the same phrase that was used over three decades ago in the Education (No. 2) Act 1986. How do you think this Bill will change what, as we heard in this morning’s evidence session, is really an inadequate situation for many academics and students?
Smita Jamdar: The phrase “reasonable practicability” is quite a common one used in legislation—another example of it would be in health and safety legislation—and what it recognises is that it is very difficult for somebody to ensure that something happens without any caveat, because clearly there will be things that you have no control over that are preventing freedom of speech happening. In this case, if we go back to the self-censorship point, you may not know that people are self-censoring, so how do you address that?
Reasonable practicability is actually quite a high legal threshold. It is beyond what is reasonable, for example: it is saying, “If this is something that is practically possible, then subject to a general sense of, say, cost-benefit analysis, you would be expected to do it.” It starts from that quite high threshold; it sounds like a low threshold, but actually it is not necessarily a low threshold and in this case it is enhanced by the fact that what is reasonably practicable will have to be determined by reference to the particular importance of freedom of speech. It is highlighting freedom of speech as something that is of itself important—so, having particular regard to the importance of free speech, steps that are reasonably practicable to take. I think it is strengthening the current position.
In relation to the evidence you heard this morning—I did not hear all of it, but I heard some—I would go back to the point that I made earlier, which is that I am not convinced that even this duty would necessarily address some of the things that people are talking about, because I am not convinced those things are best addressed by legislation, or capable of being adequately addressed by legislation. That would be my view.
Fiona Bruce
Q Thank you. Can I just probe you a little further? What is the distinction between “reasonably practicable” and “reasonably necessary”?
Smita Jamdar: Again, the question of why you would use that formulation is not something I know the answer to. My instinctive reaction to that is that something can be practicable but not necessary, as in not solely necessary—so, there are things that you could do that go beyond strictly what is necessary. They could enhance, for example, rather than just achieve the bare minimum. My instinctive reaction is that “reasonably necessary” is a lower threshold than practicability.
Fiona Bruce
That is very interesting.
Smita Jamdar: I know. I may not be right about that, so I would have to look at the legislation.
Fiona Bruce
I think the Committee would be very interested—I certainly would be—in any further thoughts you have on that, because I do have a concern that we are not raising the bar sufficiently high, bearing in mind that we have had 30 years of the same bar and we have some major problems that appear to have been escalating over that period. Your thoughts on that would be much appreciated.
Smita Jamdar: I will definitely do that, because it is not something I have thought about before, so that was very much a “reacting on my feet”-type response.
Lloyd Russell-Moyle
Q I wanted to bring it to student unions. This Bill puts a liability on student unions, and I have just set the budget for the University of Bradford’s student union in the lunch break. They are, of course, very often financially perilous bodies, relying on money from their parent institution.
Is there a danger that this provides a chilling effect for trustees, such as myself and others across the country, to allow students to exercise their full autonomy? For example, what I mean is that we have the Conservative society, the Labour society and so on, which are all autonomous in their organisation within the student union, affiliating to the student union. Is there a danger that if one of them suddenly decided that they did not want a speaker to come along, we would then have liability for those students’ autonomous actions?
Smita Jamdar: The answer to that has to be potentially, yes. It would very much depend on what the relationship between the group in question and the student union was: whether it was a formal society of the student union, or a more informal gathering. This morning I heard a suggestion that student unions could make a decision at an institutional level about certain events, but then the individuals would still be free to go to the university and say, “We want to hold this event even though the student union has not allowed us to.”
On the face of it, because the duty is to secure freedom of speech within the law for students, rather than societies as a whole, you could find that you were caught between what was essentially an internal dispute on the part of a society about whether a particular speaker was or was not welcome to speak at that society. I know that purists would say, “If one person wants this person to speak, we should allow it.” But there are resource issues for student societies and rules about their own internal operation about how decisions are made. I do not think the legislation recognises that nuance. All that would happen would be that, yes, the complaint would potentially land at the feet of the trustees, who would then have to adjudicate on it.
Lloyd Russell-Moyle
Q You could have a Conservative society that had invited a Conservative Member who then defected to the Labour party. The society would want to disinvite them but would be compelled to listen to the defector, in that fantasy scenario.
The University of Sussex, which I am involved with, and the University of Brighton have a joint medical school, so many of our student societies are joint ones at both institutions and their respective student unions—they are one body, but they affiliate to both. Where is the liability in those complex situations, which would also come about with federated universities in London and elsewhere? Would everyone be liable? Would they have to follow each institution’s rules, which might be slightly different?
Smita Jamdar: I am going to give a slightly lawyerly answer. If it got to court, the starting point would be to understand the matrix of relationships and to try to identify who was ultimately the decision maker in the case. But in practice if you are in a claimant situation, unless there are really obvious reasons not to bring a complaint against a particular student union or organisation, you will include everybody to begin with. You want to have your net cast as wide as possible; then it gets filtered down either because you have received your own legal advice that some of those are not tenable or ultimately you go to court and the court concludes that some are just not relevant parties.
Lloyd Russell-Moyle
Q That could be very expensive.
Smita Jamdar: We should all take it for granted that any of this is going to be quite expensive. There is not a way round that. These cases are likely to require legal advice; it is going to be hard for individuals to just pursue the claims themselves. The bodies resisting will undoubtedly want legal advice and, as I said earlier, once you start a process of litigation it is sometimes hard to extricate yourself from it very easily.
Lloyd Russell-Moyle
Q Sometimes some of the public debate has been about debating societies—the Oxford Union, Cambridge Union, Durham and so on—but also other informal societies. Am I right in thinking that because they have no funding relationship with the university they would not be covered by this legislation. Does that not defeat part of the point?
Smita Jamdar: Absolutely. It only applies to universities and student unions as defined, so it would not apply to the Oxford Union or the Cambridge equivalent.
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.
Lloyd Russell-Moyle
Q Universities often lease out their venues and spaces for external conferences and meetings. Those meetings might well include their students and academics, but they are effectively external activities. Those conferences might invite and disinvite whoever they wanted, depending on whether they were political or academic conference. Would the university then start having to have regard to every single external organisation that was using their buildings?
Smita Jamdar: Only if the speaker fell within the definition of “visiting speakers”—the problem here is that there is an absence of a definition. If you read “visiting speakers” in the context of the preceding subsections, you would clearly read it to mean people invited by staff of the provider, a member of the provider or students of the provider, rather than an external organisation that is using the premises.
Lloyd Russell-Moyle
Q But the external organisation might include staff, so the staff might have done the inviting but not in their staff role. Does this become very complex?
Smita Jamdar: It does become very complex. The more you move away from the big obvious case of somebody being denied the right to do the research they want to do or somebody not being able to speak or teach about something they want to, all those complexities really do become quite challenging from a legal perspective, but we can see that they may well materialise.
Lloyd Russell-Moyle
Q On a slightly different topic—I would really appreciate your input here—you touched on employment law earlier. In the current employment law protections for academics, are there weaknesses that could be strengthened but are not being strengthened in the Bill?
Smita Jamdar: Again, people have highlighted the fact that in some ways, what the Bill is doing is narrowing what limited existing protection there is for academic freedoms—that is being narrowed. Currently, academic freedom is protected largely through the constitutional documents of universities. Chartered universities—those with royal charters—have to have a provision in their charters, and the post-92s have a provision in their instruments and articles of government. Those do not currently restrict academic freedom to matters within the expertise of the academic, and I know from speaking to employment law colleagues—one of the other things I am not an expert in is employment law—that there are often cases where there is a very vigorous disagreement about whether something was an exercise of academic freedom or not when it relates to criticism of the institution.
I think that the Bill makes it clearer, but probably, from the point of view of those who feel that academic freedom is inadequately protected, it is clearer by narrowing it rather than by addressing any of those wider concerns.
Emma Hardy
Q I am interested in hearing your opinions on a couple of things. Earlier, when you were answering questions from John, you were talking about tort and how the process works. I wonder whether you are supportive of the idea of the right to appeal decisions made by the freedom of speech director, as submitted from Universities UK.
Smita Jamdar: Absolutely. As I alluded to earlier, my concern about having a stop at the OfS is that that individual may be required to interpret law, so they may well be required to decide if something is defamatory, harassment, contrary to the Equality Act or potentially a public order offence. I find the idea that those legal judgments cannot then be appealed to the people who are actually able to make legal judgments really quite worrying.
Certainly, if that were to be the case, the process for appointing that individual, and the statutory requirements that must be observed for that individual in their role, need to be much tighter, because you could end up with somebody who is effectively an appointment of whatever Government is in place at the time, and who does not necessarily have any skills or expertise to make those judgments but is the last word on them. Again, in terms of freedom, that does not feel terribly free.
Emma Hardy
Q Absolutely. You could have someone who has lost an election and is put in a position of power by the Government of the day making the final decision on what is or is not freedom of speech, with no redress to court to change it. That is a little less free than the Government had perhaps intended.
On the OfS director, earlier we heard evidence that they would be giving guidance to universities and that their role would be in providing that guidance. Can you foresee a situation where a university follows the guidance by the OfS director of the day, the OfS director is changed, and the university is then told that the guidance it followed under the previous administration is no longer correct and it is liable for breaking the law under the Freedom of Speech Act? Do you see that there could be a difficulty with the OfS director being both the judge and the person giving the guidance?
Smita Jamdar: That is always a situation with potential for conflict, because how can you then judge impartially the complaint that comes in, even if it is another part of the organisation that is submitting it? Under the Bill, it would be within the oversight of the director, so there is definitely a problem there. Until quite recently I would have been confident that, as a matter of rule of law, you could not retrospectively apply conditions in that way. However, I am less confident about that than I have been in the past.
I think there are regulatory trends that say that people do sometimes try and retrospectively shift the goalposts. Normally, you would then potentially be able to go for judicial review, and say that this is a decision that is in breach of public law principles, either because it is irrational or in some way procedurally flawed. However, under the Bill you would not have that right because you cannot challenge the decisions of the free speech champions. Bearing in mind that we have to look at the worst-case scenarios, it is possible that, through change of policy, a piece of guidance that was given and followed is now no longer considered to be adequate.
Emma Hardy
Q I wonder what you would suggest as a solution to the OfS director—as is stated at the moment—giving both the guidance and being the judge. Do you think there should be a recommended separation?
Smita Jamdar: I would have thought that one of the most useful things the OfS could do is give the guidance, and look at this through its regulatory lens. Having seen how regulation has started to change behaviour at universities in other cases, that might be where we see most of the cultural change we all feel is at the root of this.
The two obvious things that would change the position would be to build in additional safeguards, so that the freedom of speech complaints process is dealt with separately to the guidance. However, that then calls into question the role of the director—it is quite a fundamental shift. Another thing you could think about is saying that if the challenge is about the lawfulness of the speech, rather than some other breach of process, then that has to first go to court before the OfS can adjudicate on it. Then, at least, legal issues are dealt with by someone else—they are not dealt with by the OfS. The final thing would be to introduce a level of judicial oversight into what is happening, so that any particularly difficult and egregious cases could go to court and say that the OfS has not done its job in the way that Parliament intended.
Emma Hardy
Q I promise that this is the final question—although I did say that last time. Would you therefore recommend that the OfS director should be someone with a legal background, if not an in-depth knowledge of higher education?
Smita Jamdar: I would definitely say that the OfS director should have a legal background because there is so much law in here to get your head around. My preference would be to say that that person is not allowed to make legal decisions—even if they have a legal background. It just strikes me as conceptually a very difficult idea; somebody who is not a court and not a tribunal making legal decisions. That should not happen. I would go one step further and say take that out of the role.
In terms of understanding the higher education sector, I know that there is always a concern that if you bring in people who are too familiar with the sector then they will not be impartial about these issues. However, everybody in the sector recognises the importance of free speech. The problem is that there are a small number of areas that are highly contested, where different people have different views about what free speech should be. I do not think knowledge of the sector would prevent someone from being able to judge those things impartially. In fact, it might help, because it would speed up understanding the context where this is all taking place.
The Chair
If there are no further questions from Members, I thank Ms Jamdar for her evidence, and we will move on to the next panel.
Examination of Witness
Thomas Simpson gave evidence.
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—
Lloyd Russell-Moyle
Q And academics in economics departments?
Thomas Simpson: Right. So my view is that there is a really obvious coalition here of those who are concerned with the long-term health of the sector, to make it a place where tolerance of different viewpoints exists. I think that is very helpful.
There was the final point, on the role of the employment tribunal. One of the important issues here is that this is a multi-strand approach, so I do not think it is necessarily “not this, but that”. However, I think there is a very serious question, which lawyers would be better placed to comment on than me, about whether employment tribunals should be a first port of call in cases of dismissal, for instance.
Michelle Donelan
Q What do you think is the main threat to academic freedom as things currently stand?
Thomas Simpson: The main threat is the chilling effect.
Michelle Donelan
Q And will this legislation address that, in your opinion?
Thomas Simpson: It provides the best means that we have got of addressing it. Whether it will succeed or not, I do not know. We have evidence—I gave you the example earlier of the Equalities Act. The test for the success of this Bill is not what happens in the six months afterwards—whether there are controversies, what happens afterwards. The test for success is in 10 years’ time, when it is more embedded.
Michelle Donelan
Q Some commentators have said that legislation is not the answer. What is your response to that point?
Thomas Simpson: I think they underestimate the power of law to shape culture. This is a cultural issue within the sector, but I think the law will influence how that culture evolves over time.
Michelle Donelan
Q What importance do you place on the role of the director, which this legislation will create?
Thomas Simpson: As I read the Bill, and certainly I suppose in my vision, the director plays a co-ordinating role for the OfS’s functions, but the director’s decisions should not be decisions that the director makes individually; they are decisions that the board would sign off on. As I have discussed earlier, I think there is a legal recourse for testing what the director’s decision should be. But the director should be someone who is active, who is energetic and who wants to drive this.
One of the other questions here at stake—it is one of the missing pieces from prior evidence—is that we have a very valuable document from 2019, the Equality and Human Rights Commission’s guidance on free expression. That really carefully walks through very practical details of how the section 43 freedom of speech duty should be implemented in particular situations. Ten key public bodies were brought in to agree to that guidance. There is both a process and an end point that is similar to that for the wider question of academic freedom that the Bill sets out provision for.
There is an outstanding question, which people are right to ask: what is the relationship between this and the Equality Act? In practice, the EHRC guidance threads the needle on most of those issues, and there will be a comparable process for academic freedom more widely.
Emma Hardy
Q Welcome. I have a few different questions. Picking up on your point about the Equality Act and how they interplay, would you recommend greater clarification of that in the Bill? I know that we have been promised guidance to follow, but it is very interesting, looking at the evidence that has come out. There seems to be a bit of a coalition between the Free Speech Union and various universities that that clarification is needed. I wondered what your thoughts were.
Thomas Simpson: In the ideal world, that would be great. I do not know what the appetite is within the House of Commons for pressing on that, but I think it would be valuable, were it possible. The EHRC guidance generated considerable consent on how that relationship should be managed in practice. As an advocate of academic freedom and free speech, I think it does so in a way that is respectful of both the demands of the Equality Act, right and proper, and those of academic freedom.
Emma Hardy
Q The concern that I have read in the evidence is that it could be left to individual universities to try to manage what is freedom of speech versus somebody’s rights under the Equality Act.
Thomas Simpson: In my view, the greatest challenge is awareness within the sector of what the Equality Act requires and, particularly, what it does not require. That is something that the EHRC guidance does a really good job on. I would leave it to the legal people to say whether that should be in the Bill, but it seems to me that the question of how to adjudicate that has already been quite carefully thought through.
One of the areas of extension that has not had the same consideration, and one of the shortfalls of the guidance—this is not a criticism of it, because it fulfils its purpose—is its scope. It focuses only on the section 43 duty as was. There is a wider set of questions about academic freedom, and freedom of teaching in particular, that it does not address.
Emma Hardy
Q To press further on that, at the moment the universities have this question of fulfilling freedom of speech “within the law”, but they of course have to adhere to non-statutory guidance as well. Do you think that needs greater clarification? What guidance exactly are universities meant to follow on protecting free speech “within the law”?
Thomas Simpson: That is not an issue that I have considered previously.
Emma Hardy
Q Okay. Finally, I dare not provoke the wrath of Sir John by using the words “unconscious bias training”, but you seem to suggest in your role that people unconsciously choose people who are like them and have similar thoughts to them for roles. Do you think that legislation can address the unconscious bias that people have?
Thomas Simpson: Pass—that is a very wide question. I certainly envisage that part of what will be involved in fulfilling the duty to promote academic freedom would be something like holding and convening events for freshers to think about how a university functions, and what it looks like to promote a place of free debate. My understanding is that it has proven very difficult through direct unconscious bias training to unpick that, but someone who is better versed in the evidence could speak to that.
Emma Hardy
Q Do you think the Bill as it stands addresses the unconscious bias that people have? We will not mention training, Sir John.
Thomas Simpson: Whereas 30 years ago you might have had a situation where in a small business people said, “We don’t want to employ X because maybe she’ll be pregnant in six months’ time”, people now would rightly be very cautious about saying that, and ought to be, and they ought not to believe it. The fact that we have come to that position is in part due to anti-discrimination legislation, which has helped bring to people’s minds the dangers of thinking in that way.
One of the challenges that we need to think through in the sector is avoiding the risk of partisan thinking, because such thinking, whatever partisan tribe you are sucked into, generates the possibility of seeing people as indicative of a particular tribe that you might not like. Over time, that norm should embed itself. That is the view and the vision.
Emma Hardy
Q So there is nothing explicitly within the Bill other than your hoping that in 10 years we might see an impact.
Thomas Simpson: No, it provides for the means by which that would happen. The functions of the director of free speech are to identify good practice and give advice on how that will take place. I think the vision is that the advice on what that good practice is would be what is required to fulfil the A3 statutory duty to promote academic freedom. Universities that are taking that advice would then start to implement that form of training, whatever it is.
Emma Hardy
Q So you see the bonus as being the advice that is given. Is it not possible for the OfS to give advice on something without having to legislate?
Thomas Simpson: I think the crucial thing is that the legislation puts it within the OfS’s remit. It mandates that this should be within its remit. I think it was already within its remit beforehand; it just was not being carried out.
Fiona Bruce (Congleton) (Con)
Q Good afternoon, and thank you for coming to speak to us, Mr Simpson. You have written extensively on this issue, including a substantial paper you co-wrote in 2020 entitled “Academic freedom in the UK”. You wrote that you were focusing largely on improving oversight of academic freedom to ensure compliance with existing laws. I would be interested to know whether you feel that the Bill will satisfactorily improve oversight by governing bodies of higher level educational institutions, and whether it will also provide satisfactory extra university appeal mechanisms.
Thomas Simpson: One of the really urgent amendments to the Bill, in my view, relates to the opening duty, what you might call the source duty, in clause 1. The point has already been made, and I think that there is some truth to it, that the Bill changes the emphasis of the statutory duty—I do not think intentionally. If we look at the detail, it states:
“The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom speech, are reasonably practicable for it to take”.
I just want to focus on the governing body issue. It focuses the statutory tort from which everything else follows— the statutory duties—on the steps that the governing body must take rather than on the way that constituent parts of the university conduct themselves.
Let me just put that in concrete terms. Suppose there is a case in which someone is not appointed because they are judged to have the wrong view on whatever issue, and they wish to test this and they have evidence that makes them think that is the case. What that person wants to do is test in the courts, “Did I not get the job because of my view?” That is what they want to test. What the statutory duty implies is that the courts will ask, “Did the governing body take the steps that were required to stop that happening?” Okay. That is a very, very different thing. Testing that is asking, “Have they had a discussion on the governing body of which there are minutes to record this happened? Did they put the right training in place? Did they appoint the right people? Is there some error that they have made?” What wants to be tested is whether the individual was treated unfairly in some sort of way.
Sending in the report, we advocated for a direct duty to be placed on higher education providers and not on the governing body of it to take steps. That is a really vital measure.
Fiona Bruce
Q May I look at the subsection after the one you have quoted from. Subsection (2) states that the
“objective is securing freedom of speech within the law”.
Is there some merit in considering an amendment so that it reads, “the objective is securing freedom of speech without unlawful interference”? That would focus the minds of those who are assessing the situation on whether the interference has been unlawful, as opposed to whether the speech is within the law or not, which brings into play all the complexities about the interpretation of what is within the law and is not, in terms of harassment and so forth.
Thomas Simpson: I would need to think more carefully about the specific wording that is at stake there. Perhaps I can come back on that, because another really important question is raised by clause 2: the coverage of the duty. 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—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. Many of the specific controversies are about people not losing their jobs, because part of the charter of the university prevents that from happening or makes it very difficult for it to happen. But honorific positions lead to people being dropped like a hot potato.
Fiona Bruce
Q Thank you. That is a very relevant point. In fact, I will turn to proposed new part A3 of the Higher Education and Research Act 2017, which is the
“Duty to promote the importance of freedom of speech and academic freedom.”
It talks about promoting academic freedom for academic staff, and what you call affiliated academics could probably be included. What about academic freedom for students?
Thomas Simpson: That is a very good question. One of the possibilities that exist, and that I would commend for revision of the Bill, is to think about a wider definition of academic freedom. In the English law context, we talk about the duty to protect freedom of speech in section 43 of the Education (No. 2) Act 1986, and the Education Reform Act 1988, which prevents dismissal. The much longer discussion of academic freedom tends to associate a number of other activities with it. Freedom as to how you teach would be a classic component of academic freedom—your freedom not to have your curriculum dictated to you as a teacher—as would your freedom to criticise your own institutions. The case law of the European Court of Human Rights has established that, and it goes back to UNESCO’s 1997 definition and prior cases.
The ability to publish and disseminate the results as you see fit is another activity that would classically be viewed as part of academic freedom. Currently, the Bill does not provide any specific protection for that, so a valuable addition to the Bill would be to expand the definition of academic freedom to include those kinds of activities. The wording for that needs to be carefully thought through, because this would be an innovation in terms of the recent history of legislation in the UK, but I think that would be a really valuable function for it.
Fiona Bruce
That was my next question, so thank you for answering it in advance.
The Chair
Four more Members have indicated that they want to ask a question. I call Kevan Jones.
Mr Jones
Q I am very clear that where we need legislation to protect people, I will support it. That is the way we should operate. I struggle with the Bill and understanding what the problem is. You used the phrase “chilling effect”. We heard this morning about people self-censoring, which is a very difficult concept to understand. You seem to be saying that the legislation will be a bit like equal rights legislation, but may I respectfully say that it will not? With equal rights legislation, at least you can define things—for example, you can define whether a woman is pregnant and whether she has been discriminated against. Defining notions of free speech will be very difficult.
Perhaps I am old-fashioned, because I do not believe that the state should intervene where it is not necessary. That is why I find the Bill, which comes from the Conservative party, very interesting. I am someone who believes that, with guidance—I am not suggesting that the existing guidance should not be used—academic institutions should be allowed to police themselves. Apart from Policy Exchange wanting to do a paper, and the examples that you have picked up, what is the extent of the problem? No one has been able to explain it to me. The Minister did not explain it on Second Reading, and you have not done so either. What is it?
Thomas Simpson: One of the things that really strikes me is often overlooked in this debate is the structural similarity between discussions around free speech and discussions around other forms of discrimination. We have rightly been thinking very seriously about racial discrimination in the past year and a half in particular, and one of the features of that debate is that people who may not themselves be subject to discrimination on those grounds are often cautious or outright sceptical that there is a problem here, whereas those who are subject to it, or at risk of being subject to it, are often very clear that there is a problem here. There is an asymmetry of perspectives.
Mr Jones
Q With respect, Mr Simpson, that is nonsense. If someone is black and they are discriminated against, whether in delivering a service or in a job, you can define that. What we have here—what I am trying to get to—is that you have used this phrase, “chilling effects”, which might get nice headlines, but does not actually define what the issue is. In terms of existing legislation, given that most universities have charters that protect freedom of speech, what is it that is not there at the moment? I have to say, I do not agree at all with the analogy with equality legislation, because it is not the same at all.
Thomas Simpson: There are two problems. One is that existing statutory duties have very weak means of enforcement, so my view is that those gaps should be plugged. Two of the controversies in Cambridge in 2019 were around the dismissal of Noah Carl and its rescinding of the visiting fellowship invitation to Professor Jordan Peterson. Regardless of the merits of either case—I do not know the details of them—the astonishing thing about that was the lack of due process. The university in one case, and the college in the other case, made the decision, and there was nothing that the people involved could do, or very little that they could do: there were not ready legal means. There needs to be legal remedy.
Actually, one of the really surprising things about this discussion is that it is not an argument against taking measures, specifically in the human rights case, to guard against human rights being breached. You do not need to show that there are lots of patterns of human rights being breached.
Mr Jones
Q But, with respect, those are covered already by the equality legislation and the Human Rights Act. You do not need another piece of legislation. You said earlier on that you would get a situation where, for example, somebody was not appointed because of their views, and you came up with this issue around right-left academics. My experience is that the reason people are appointed is usually old boys’ networks—and it is usually boys—within universities, not because of their political views, but this legislation is not going to stop someone not being appointed. You are not going to get someone at an interview saying, “I wouldn’t appoint you because I disagree with you on x, y and z and what you have said.” They will find some other reason, so can you explain where the Bill is going to actually do that? I cannot see it. It will not happen.
Thomas Simpson: Exactly the same charges were made against the original passage of anti-discrimination legislation.
Mr Jones
Q No, it is different. In those cases, you can actually define it: if, for example, a woman is pregnant and there is evidence that the individual did not get the job or was not promoted because of their sex, their gender or because they were pregnant, for example, you can define that. You can’t in here, and the problem with this Bill is the same problem that we had—with great respect to Policy Exchange—with the Overseas Operations (Service Personnel and Veterans) Bill, which set out to solve a problem that was not there and ended up in a situation where we took rights away from veterans and made things worse.
The issue I have with this is that, with a Conservative Government, shouldn’t we be upholding the freedoms of universities to decide what they want to do within the legal framework that is there, rather than what this is? It is going to put the director in a position whereby they will be able to dictate terms. Now, that might be okay when you have a Conservative Government, but what happens if you have a radical Government of a different persuasion that then starts saying to universities, “You will do x, y and z”? That is why I find it very difficult to understand the reasons why Conservatives are backing this piece of legislation, because interventions on that level are not what it says on the tin of conservatism.
Thomas Simpson: The legislation does define it. It says that one of the objectives is
“securing that, where a person applies”
for a given job,
“the person is not adversely affected in relation to the application because they have exercised their freedom within the law”,
referring to an earlier clause.
Mr Jones
Q How do you prove that? You cannot. In future, let’s say you get a Government of a different persuasion who puts a director in there who says, “Right, the new guidance is X, Y and Z. You will not be able to teach certain right-wing views on economics or various things.” The state is intervening in an area that I find remarkable that the Conservatives should be supporting.
Thomas Simpson: The current situation is one in which universities mark their own homework about whether they have complied with the duty.
Mr Jones
Q That is not true, because there are boards of universities. There is the advice put out in present legislation—I accept it might need updating, but you do not need legislation to do that. There is an idea that university boards just sit there and nod through things with academics—they do not. They challenge; that is their job. But it is not the job of the state to run universities. That is the thin end of the wedge with this legislation.
Thomas Simpson: What this creates is an ecosystem of accountability, both within the sector and external to it.
Sir John Hayes
Q I am grateful to Emma for drawing attention to my views of the relationship between consciousness and unconsciousness. That is a philosophical debate we could have. I am interested to talk about your views on trust and truth, and whether you think trust is found through synthesis or, as Hegel said, truth was—but let us talk about that on another occasion and in a different place. Dealing with truth and trust, how far has the culture in universities changed? Has this concern about free speech and openness altered in recent years, in your view?
Thomas Simpson: I can give my personal experience. I am cautious about drawing too strong conclusions from that. My personal experience was that as an undergraduate from 1999 to 2002, I felt free to argue a position in my final year dissertation that I knew my markers would reject, but would recognise the quality of the work on its own merits. I had the confidence to do that. The topic was whether God existed, broadly speaking. Cambridge was a very secular faculty at that time; I was examining a recent contribution to that debate.
I had a moment about three years ago where an undergraduate student in a different department from where I work was talking to me about their political philosophy paper. They had written all the ethics of migration, which is a sensitive subject. The philosophical debate is whether countries have the right to control who crosses the borders into their country. The two positions are what is called open and closed borders. The philosophical debate is already right on the edge of the Overton window for public discourse on that topic. It became clear in the conversation that the student’s personal views were in favour of closed borders, so I said, “What did you argue for in the essay?” The student replied, “Oh, I argued for open borders. It would be silly not to do that, because that is where the lecturers were coming from.”
That to me had a sense of tragedy: here was an individual who believes something different and thought they had arguments for that, but felt that the grade they would receive on the exam would be different because of the content of what they argued for. That sense of danger about particular viewpoints is something I have sensed grow within the university over the last five or six years. I think it roughly tracks some of the turmoil we have had in the public space more generally in that time. It is mitigating somewhat now, but the patterns are in place and we need to take steps to counter that.
Sir John Hayes
Q The implication from earlier witnesses, Arif Ahmed, Nigel Biggar and others, is that there is what amounts to a culture of fear. You are setting out the very reason why the Bill is pertinent now there has been a change. Is it that what is acceptable has been redefined, and what is unacceptable is now no longer permissible? It will always be true that there will be differences of opinion, and some people would find certain views agreeable, but is the change that ideas have gone from being disagreeable to, in effect, prohibited?
Thomas Simpson: I have been really inspired by the observation that Scalia and RBG, the two SCOTUS justices, used to go to the opera together. They were ideological opposites and I am sure that they even viewed the other person’s views as reprehensible at times, but there was a collegiality about their ability to do their work together. That collegiality exists in very many places, but it is under pressure, and that is the challenge that we are facing.
Sir John Hayes
Perhaps a way of resolving the difference of view between the right hon. Member for North Durham and the witness is for the witness to cite some of that evidence in writing as a follow up? I would like to know about courses that have been cancelled, stopped or never delivered, speakers who have not been invited or where invitations have been withdrawn, and funding that has not been granted on the basis of all of those things being “unacceptable”. It would be very useful if you could provide some kind of note with that as a follow up, which will hopefully allow us to move on.
Gareth Bacon (Orpington) (Con)
Q Paraphrasing slightly, you talked about the chilling effect when you were answering the Minister earlier. Over what period of time do you think the chilling effect, as you put it, has developed?
Thomas Simpson: In my view, the past five years have been particularly difficult. I think it is a longer-running trend and probably stretches back to early 2010s. I was out of academia for a key period during the early 2000s. I do not know where the data is on that. If I may come back on the data question, Professor Eric Kaufmann is in a much better position on that, as that is his speciality, whereas I am the philosopher here, so he would be well placed to speak to about those challenges.
Gareth Bacon
Q You also said—again, I paraphrase, so if I get it wrong, correct me—that you did not know if the legislation would succeed, but it was the best chance of leading to a cultural change over, perhaps, a 10-year period. If I were to ask you to speculate, if the Bill were not taken through, what would we see happening over the next 10 years?
Thomas Simpson: At the moment, the crucial question is the position of those involved in university leadership and administration. At the moment, if someone says something controversial, even reprehensible, a group of people on social media organise a campaign against the person, but for a university administration making a decision on whether to allow the event to go ahead, whether to rescind availability of premises, whether to allow this person to stay in post or whatever it is, their incentives are, “I am concerned for the reputation of the institution and what I am seeing is a lot of outrage on social media; that is what I am seeing.” The incentives are to give way to that and that is what we have seen. That is the presenting issue in these high-profile controversies.
What we need is to change the incentive structure for individuals in that, and not just change the incentive structure but affirm through legislation and through, as it were, the public speech of Parliament that academic freedom matters. When this happens, it will allow people to hide behind the legal duty. The conversation is such now that even speaking in favour of academic freedom makes one liable to accusations of being a reprehensible person and what a horrid attitude it is that you are hiding. Even universities feel that pressure, I think. The danger is that we just carry on in the current trajectory, which is that events do not go ahead and people hold their tongue. Our research environment and the hurly-burly of debate on campus just becomes not a hurly-burly, but one in which there is a prevailing viewpoint.
Gareth Bacon
It seems to me that what you are describing the difference between mob rule and the rule of law.
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 It depends how you define it. What the Bill is doing is letting the state determine what freedom of speech is going to be. I accept that everyone agrees what its broad definition should be, but as I said to the last witness, there is a danger here that you will actually have the state, whatever its political persuasion, intervening in academic institutions. Surely that is bad?
Dr Harris: On the definition question, I heard your questions to Professor Simpson. All rights are difficult to define, but that does not mean therefore that we are at a loss. I think the court in Strasbourg, and certainly the US courts, would disagree that freedom of speech is something that is impossible to define. I do not think the idea that we will sort of give up or backslide because it is difficult to define a fundamental right is a serious position. Yes, it is much more difficult to define than pregnancy, which is famously binary—you are either pregnant or you are not—but nevertheless, courts and legislatures are able to define more closely what a right should be.
Mr Jones
Q I am sure if we were sat in the Russian Duma, they would argue that they have freedom of speech there. I think we would take a very different view.
Dr Harris: To go back to the point about the intervention by the state, I think it is important that we are clear what we mean by “the state”. There is obviously a role for the OfS—an administrative form of adjudication—and perhaps we can come back to that, as I think it is a very relevant issue. It is entirely in keeping with any right that it is enforced by law and that there is a remedy when there is infringement of that right. That is simply what a right is. There are a number of people who are saying, “I believe in free speech as a right,” and then they baulk when we say that it must be enforced by the courts and there must be a remedy. That suggests to me that they do not take free speech seriously as a right, which as I say, is not a credible position in a liberal democracy.
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.
Michelle Donelan
Q We have heard a great deal that is counter to your view about this notion that you can achieve this without legislation and that you can achieve that cultural change. What would you say in response to somebody who says that you can actually achieve it without the legislation?
Dr Harris: Again, the question is how much of a risk are we willing to take? I think there is some truth in that, and going back to the previous question, it seems to me likely that there has been a tail-off in speaker cancellations, and many people on Second Reading brought up that fact. It is very possible as well—I can only speculate—that it is probably the negative press attention that cancellations attract that has led to that downturn. So you may say that is an example of a good result without legislation.
I think the problem is that, given the importance of what is at stake here—not just protecting people who stand to be bullied and have their lives made miserable, but also looking at a value that is pretty much integral to universities as public bodies and to their function and their value—it seems to be rather remiss to say that we will entrust those things to, essentially, unreliable mechanisms—“As long as The Telegraph keeps on publishing these stories, we know the universities will keep on the straight and narrow.” I do not think that is an adequate safeguard. I think it is absolutely the job of Parliament to say that public bodies must protect fundamental rights and deliver the value that is central to their public function. That is not simply a good thing; I think it would be odd if Parliament did not.
Michelle Donelan
Q Do you think that breaches of the current duties are going under the radar? What impact do you think they are having on individuals? That is what Bill is intending to impact—it is intending to change the lives of academics and students.
Dr Harris: To give an example, one of our members is Dr Abhijit Sarkar, a scholar of Indian political history at the University of Oxford. He specialises in research into far-right Indian politics, or so-called Hindutva. He posted on Instagram about the president-elect of the students’ union. He alleged that she herself was a Hindutva, a far-right Hindu nationalist. He backed it up with the fruits of his research and pointed out the various signs and tell-tales of codes that British people like me would not pick up on. It is sort of like what Searchlight do in pointing out the signs of the far right.
There was an extreme campaign against Dr Sarkar, and I have some details of the threats made against him, which have gone to the university. They include: “You die with your spine broken”, “You and your subhuman kin need to be culled and wiped from the subcontinent” and, “I request to start a campaign to bring that bastard to India” In response, the university disciplined Dr Sarkar and called him in for investigation. I cannot, and Dr Sarkar cannot say, what the outcome of that was. What is telling for me is that this was a situation where an academic was really fulfilling a public watchdog role. He was telling people that these were the tell-tale signs of far-right nationalism. When his life was threatened, the university still could not bring itself to take his side. They could not stand behind him and say, “We are with you and we support your academic freedom.”
That, I suspect, is a major part of the trauma that is caused by this. It is this feeling of isolation—that there is no one who has got my back. We see that with the gender critical feminists. There is a member whose mental health has been destroyed—I cannot mention her name. There was a campaign of harassment against her and it was brought to the attention of the university. Nothing happened and she was managed out in a sham redundancy. This is the effect. What has come before us—the cases we have dealt with—are not exhaustive; I suspect they are representative of a wider phenomenon, and I think it is too much already.
Fiona Bruce
Q Good afternoon, Dr Harris. Do you think the duty to take reasonably practicable steps to secure free speech is adequate—the duty in clause 1 and elsewhere in the Bill?
Dr Harris: It is difficult to say, and that is the problem. The Government and their lawyers have perhaps missed some opportunities to bring greater clarity and perhaps have not been as ambitious as they could have. “Reasonably practicable” steps largely replicates the wording of the 1986 duty. The problem is that in that interim there have been very few cases where the courts have considered the meaning of that. One ambiguity is if a court were asked to consider what “reasonably practicable” steps means. There is a possibility that they would say it is pretty much for the university’s discretion to decide what is reasonably practicable, and the court will simply insist that it not be irrational—that it not be Wednesbury irrational. That is a very low standard of irrationality. It is: “Don’t be completely unreasonable.” In the light of that, it is disappointing that there has not been more to state what that means.
Another ambiguity is that obviously since 1986 the Human Rights Act has become law, which means that this duty now sits alongside the section 6 duty of the Human Rights Act that a university must not act incompatibly with the article 10 right to freedom of speech, so I think that there is a bit of a missed opportunity to say how the two duties sit alongside each other. Do they essentially mean the same thing or does the Bill superimpose a positive duty—the Human Rights Act says that you must refrain from incompatible acts, and then the Bill says further that you must positively take steps to secure freedom of speech?
That is one potential interpretation, so I think my answer is that there is too much pot luck in this. There is too much hoping that when the courts get around to asking what this means they will tell us. I think Parliament should decide what it wants to do and say it, rather than leave a gap to be filled by the courts. Saying “all necessary steps such as are reasonable to secure freedom of speech” would be a very clear way of at least achieving clarity. Some may disagree, but it has the benefit of being a clearly defined duty.
Fiona Bruce
Q The word “reasonable” qualifies it, so that for example if security costs were a quarter of a million pounds those steps probably would not come within the clause, but if security costs are modest to ensure that an event goes ahead then the university should take those steps.
The Chair
Dr Harris, may I remind you to keep your answers brief?
Dr Harris: Sorry. Yes, correct—that is possibly how it might be interpreted. This has been litigated in the case of Ben-Dor, where it is perhaps contestable whether the court was right to say that the amount that it would have cost was an unreasonable amount. 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.
Fiona Bruce
Q In your evidence, you say that you
“believe Parliament should decide, in this Bill, how this conflict is to be resolved”—
the conflict being that between whether provocative speech is free within the law or conduct having the effect of harassment. Can you clarify that, because this is a really complex but very important issue in our deliberations on the Bill?
Dr Harris: I will be as succinct as I can. Opponents and supporters of the Bill can hopefully find agreement that it potentially puts VCs and universities in a very difficult position. It will create borderline cases where it is difficult for the university to know whether in allowing an event to go ahead they may open themselves up to liability for harassment. It may be harassment of employees, for instance. Alternatively, if they decide that it is not quite harassment, could they then be sued because they failed to secure freedom of speech?
This is the result of the duty being essentially parasitic. It says that you must secure free speech as the law defines it. The Bill does not amplify or further define the right to free speech. I think that there is a conflict there. I do not think that it is fair to just lumber it on universities. I think there is a danger of universities responding by being completely risk averse—becoming simply anodyne—and I think it is for MPs to show some thought leadership. We have these two incommensurate values: the prevention of offence related to protected characteristics and protection of free speech, and I think it is for MPs to decide how we reconcile those two values. I do not think we should outsource the decision to universities.
Emma Hardy
Q Interestingly enough, those were the points that I was going to cover. That is interesting indeed, with your comments about the competing obligations under the Bill and the Equality Act. I know you have suggested that MPs resolve this, but, looking at some of the other evidence that we have had, would one step towards that be to make it explicit on the face of the Bill that universities, in doing this, must also take equality legislation into account, along with some of the non-statutory guidance—Prevent, and all of those other things? My concern is that none of that is in this at all.
Dr Harris: I think that there are a number of options. In the Bill at the moment, the OfS has the power to issue advice. However, as you say, there is nothing equivalent to the Counter-terrorism and Security Act 2015, whereby the university will be under a statutory duty to give due regard to that advice.
There are a number of options. One would be that there be new guidance, perhaps from the OfS and the Equality and Human Rights Commission, setting out clearly the scope of the Equality Act, when it is not a justifiable grounds for infringing free speech, and the true extent of a university’s liability—for instance, like the fact that universities are not liable under the Equality Act for what their students do. That is quite important. That is a good, soft way of doing it, but the potential drawback of that is that the Equality Act is already fairly clear in its definition of harassment in section 26, in that it has this safeguard of
“whether it is reasonable for the conduct to have that effect.”.
What we are seeing in relation to reporting websites where students can report harassment—it was seen at the University of Essex, regarding Rosa Freedman and Jo Phoenix—
Emma Hardy
Q I am interested in the Bill, rather than having a Second Reading debate on whether we should or should not have this. As the Bill stands, it does not contain anything about universities having to take account of existing legislation. It just says “within the law”, which feels a little vague to me.
With your comments acknowledging these competing obligations, my question to you is more, as a lawyer, how can that be remedied in the Bill? Could there be a concern over primacy with new case law existing outside universities, and what an OfS decision is, in terms of interpretation of the Equality Act and interpretation of this?
Dr Harris: The Equality Act is already is there by virtue of “within the law”, so it does not need to be explicitly stated. A university will have no duty to secure the right to harass someone, and it will not be in breach of the Bill if it censures an academic for discrimination or harassment. That is already there, in the Act. I am saying that one way to resolve the potential conflict that we were talking about, between the Equality Act and this Bill, would be to have guidance to help universities navigate this very fine line.
That is one way of doing it. The other is for Parliament to re-clarify the definition of harassment with relation to universities. I accept that getting into the Equality Act is very controversial and tricky terrain, but the explanatory notes of the 2010 Act, as enacted, quite clearly say that in making findings of harassment, courts should take into account academic freedom. I think there is a lot that can be done that would not substantially change the Equality Act, but that would clarify how it applies in the academic context.
Emma Hardy
Q It is interesting, because in some of the evidence that we have had from the universities, they have asked for that clarity. They said that,
“absent further clarity in the Bill, this would be an untested assumption, and an HEI/SU relying upon this assumption may carry a greater risk of being exposed to a free speech challenge”.
They were requesting that clarity in the law, so your comment is interesting.
Dr Harris: Universities often go beyond what the Equality Act—
Emma Hardy
Because they have the Prevent legislation and much other non-statutory legislation that they are expected to follow.
Dr Harris: That is correct. I have not yet seen evidence of over-application of the Prevent duty—at least I have not seen it, and certainly one sees more of that in schools—but, first, universities need to agree on what the Equality Act actually requires of them. They need to—
Emma Hardy
Sorry, it is not just the Equality Act. Universities are expected to follow a number of statutory measures and non-statutory guidance. My concern with that—one shared by a number of people—is that it could have a chilling effect, with universities being risk averse.
Dr Harris: There will be a balance of competing obligations. That will always happen. One thing that I would certainly say is that, realistically, the risk in most cases will be quite low. Universities are not really dangerous places. It is not like serving in the infantry. There will be some instances where it is borderline, where it is very difficult to sort out a conflict between two competing obligations. One way to minimise the problem that you are talking about is for universities to start taking a more pragmatic approach to those liabilities. For example, if you look at a number of external speaker policies—they are essentially codes of practice under section 43—you would think that putting on an academic talk was a terribly dangerous event.
Emma Hardy
Q I am going to tie you down to talking about the Bill, because we are running out of time. Your recommendation, therefore, would be for guidance to clarify that possible tension between what the Bill is trying to do and existing legislation.
Dr Harris: That is one proposal. I think that universities would probably ignore it, just as they have ignored the Equality Act—
Emma Hardy
I was referring to guidance from the Bill, but okay.
Dr Harris: It is one option. You can create a duty to have due regard for guidance. That is one option. For universities, it would not be enough to get them—
Emma Hardy
Q You would want it in the Bill.
Dr Harris: One thing you could do is to amend the Equality Act in the Bill to state that, in the academic context, universities must have due regard—
Emma Hardy
Q As we said, it is not just the Equality Act but all the other pieces of legislation. Would you wish to amend them all through the Bill?
Dr Harris: No. Because I do not think that they pose the same difficulty and there is not as much systemic overreach.
Emma Hardy
Q Finally, the online safety Bill will be going through Parliament. What thought have you given to that Bill, how it will potentially limit freedom of expression and how it interacts with this Bill going through Parliament at the same time?
Dr Harris: I have not really thought about how it interacts with this Bill. Certainly I have considered it otherwise. 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.
Sir John Hayes
Q Notwithstanding Kevan’s point about university charters, is the real issue not about policy making? While it is true that a university in its charter is committed to openness and free expression, in policy making the story is far from that. Is it not really the case that universities persistently misinterpret the legal definition of harassment and underestimate freedom of expression and openness in their policy documents? You talked earlier about balance. Isn’t the question about this Bill not the effect it will have on law, in the sense of legal cases, but more the effect it will have on universities looking again at their policies and policy-making process?
Dr Harris: Yes, I very much agree. I think that what the Bill needs to do—this fits with the previous question—is elevate freedom of speech to the policy decision-making process, or the matrix, so that it is one of those considerations that is always baked into decision making.
To give you an example, the University of Cambridge launched a really quite restrictive reporting website where it asked staff and students to report micro-aggressions, which could include raising your eyebrows and that sort of thing. Now, the FOI request that we did on that showed that there were something like 400 pages of planning, correspondence and decision making about this report and support website. How was there so much consideration of this policy, and at no point did anyone step in to say, “Is this compliant with our legal free speech duties?” It is this absence from decision making. I think all this Bill needs to do to be successful is to cause a momentary pause. It needs to cause a degree of reflection.
Sir John Hayes
Q And in that sense, it will change the balance of power between academics and university bosses, because there is a sense—and this is about governance as well, isn’t it—that in that kind of process that you have described, academics are often not involved, so they are asked to do things that they have not had a role in helping to shape. Is this not also good in the sense that it only protects academics, but really curbs the power of some of the university chiefs, who sometimes impose these policies top-down? As an addendum to that, every time Kevan speaks about this dystopian future of a militant Government, he waves his hands vaguely in John’s direction. I wanted to defend John.
Mr Jones
No, it’s conscious bias—[Laughter.]
Dr Harris: Yes, absolutely. For instance, in the determination of curriculum content, that is something where there absolutely must not be imposition of bureaucratic standards. The example that I cited in the written submission was that of the University of Oxford’s music faculty, which decided to decolonise its curriculum. I should say that that is a legitimate exercise of academic freedom, but it then said, “Members of the faculty must not disparage the curriculum.” Obviously, curriculums are changed by disparaging them—that is how they came to be decolonised in the first place—so we cannot stop the process.
There needs to be, and I think the Bill could include, a right of consultation. It is academic good practice anyway, and it slightly demeans universities that they need to be told that, because it should be part of academic ethics. There is also the right to criticise one’s institution. That is part of the international law standard of academic freedom. It is embedded in a number of university statutes. Whatever happens, the standard adopted by the Bill should be at least what is already best practice in the sector. I do not think it should go beyond that.
Lloyd Russell-Moyle
Q The Bill is about trying to change cultures in universities. Surely that requires universities to train people about biases that they might have against right-wing or controversial views. Would you not agree that universities would need to implement training sessions and education programmes for their students and staff on those issues of freedom of speech?
Dr Harris: Yes—
Lloyd Russell-Moyle
Q Yes—thank you. I am not going to have waffle from you. Therefore, why has your group taken three universities to trial over them trying to implement non-conscious bias training for their staff? Why is your institution trying to shut down the universities implementing the kind of thing that the Bill would do?
Dr Harris: We did not take them to trial, I should say.
Lloyd Russell-Moyle
Q Well, you took them to either employment tribunals or to complaints procedures.
Dr Harris: We wrote letters to them, but to get to the central—
The Chair
Q Order. I am afraid that brings us to the end of the time allotted for the Committee to ask questions, and indeed for today’s sitting. I thank Dr Harris, on behalf of the Committee, for his evidence.
Ordered, That further consideration be now adjourned. —(Michael Tomlinson.)
Adjourned till Monday 13 September at half-past Three o’clock.
Written evidence reported to the House
HEFSB01 Benjamin Marler, Founder and Vice President of the Debate Society, Union of Students, University of Derby
HEFSB02 Jim Dickinson, Wonkhe
HEFSB03 Professor Nigel Biggar, CBE, Regius Professor of Moral and Pastoral Theology, University of Oxford
HEFSB04 Taylor Vinters LLP
HEFSB05 University of Cambridge
HEFSB06 Arif Ahmed MBE, Reader in Philosophy (and Fellow of Gonville and Caius College), University of Cambridge
HEFSB07 Universities UK
HEFSB08 Prof Ross Anderson FRS FREng, Professor of Security Engineering, Cambridge University and Edinburgh University
HEFSB09 Free Speech Union (Confidential)
Health and Care Bill (First sitting)
Tuesday 7th September 2021
(2 years, 7 months ago)
Public Bill CommitteesRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 7 September 2021 - (7 Sep 2021)
The Chair
I have a few preliminary announcements. Please switch off all electrical devices or turn them to silent. Tea and coffee are not allowed during sittings of this Committee. I encourage Members to wear masks when they are not speaking; this is in line with Government guidance, and that of the House of Commons Commission. Please also give each other and members of staff space, both when seated and when entering and leaving the room. Members should send their speaking notes by email to hansardnotes@parliament.uk, and when officials in the Gallery communicate with Ministers, they should do so electronically. Date Time Witness Tuesday 7 September Until no later than 10.30 am NHS Employers; Health Education England Tuesday 7 September Until no later than 11.25 am NHS England and NHS Improvement Tuesday 7 September Until no later than 2.30 pm NHSX Tuesday 7 September Until no later than 3.15 pm NHS Providers; NHS Confederation Tuesday 7 September Until no later than 4.00 pm Care Quality Commission; Healthcare Safety Investigation Branch Tuesday 7 September Until no later than 4.45 pm Local Government Association; Faculty of Public Health Tuesday 7 September Until no later than 5.15 pm Welsh Government Thursday 9 September Until no later than 12.15 pm UNISON; British Medical Association Thursday 9 September Until no later than 1.00 pm Royal College of General Practitioners; Royal College of Nursing; Academy of Medical Royal Colleges Thursday 9 September Until no later than 2.45 pm The King’s Fund; Nuffield Trust Thursday 9 September Until no later than 3.15 pm Gloucestershire Integrated Care System; NHS Confederation’s ICS Network Advisorate Thursday 9 September Until no later than 4.00 pm Centre for Governance and Scrutiny; Centre for Mental Health Thursday 9 September Until no later than 4.30 pm Healthwatch England Thursday 9 September Until no later than 5.15 pm Association of Directors of Adult Social Services; British Association of Social Workers
We will consider first the programme motion on the amendment paper, then a motion enabling the reporting of written evidence for publication, and then a motion allowing us to deliberate in private about our questions before the oral evidence sessions. In view of the time available, I hope those matters can be decided without debate.
I call the Minister to move the programme motion, which was discussed yesterday by the Bill’s Programming Sub-Committee.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 7 September) meet——
(a) at 2.00 pm on Tuesday 7 September;
(b) at 11.30 am and 2.00 pm on Thursday 9 September;
(c) at 9.25 am and 2.00 pm on Tuesday 14 September;
(d) at 11.30 am and 2.00 pm on Thursday 16 September;
(e) at 9.25 am and 2.00 pm on Tuesday 21 September;
(f) at 11.30 am and 2.00 pm on Thursday 23 September;
(g) at 9.25 am and 2.00 pm on Tuesday 19 October;
(h) at 11.30 am and 2.00 pm on Thursday 21 October;
(i) at 9.25 am and 2.00 pm on Tuesday 26 October;
(j) at 9.25 am and 2.00 pm on Wednesday 27 October;
(k) at 11.30 am and 2.00 pm on Thursday 28 October;
(l) at 9.25 am and 2.00 pm on Tuesday 2 November;
2. the Committee shall hear oral evidence in accordance with the following Table:
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clause 1; Schedule 1; Clauses 2 to 13; Schedule 2; Clauses 14 to 16; Schedule 3; Clauses 17 to 25; Schedule 4; Clause 26; Schedule 5; Clauses 27 to 38; Schedule 6; Clauses 39 to 41; Schedule 7; Clauses 42 to 59; Schedule 8; Clauses 60 and 61; Schedule 9; Clauses 62 to 66; Schedule 10; Clause 67; Schedule 11; Clauses 68 to 72; Schedule 12; Clauses 73 to 93; Schedule 13; Clauses 94 to 106; Schedule 14; Clauses 107 to 118; Schedule 15; Clauses 119 to 125; Schedule 16; Clauses 126 to 135; new Clauses; new Schedules; remaining proceedings on the Bill; and
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 6.00 pm on Tuesday 2 November.—(Edward Argar.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Edward Argar.)
The Chair
Copies of written evidence received by the Committee will be circulated to its members by email and made available in the Committee Room.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Edward Argar.)
The Chair
If everyone is agreed, we will go into private session to discuss lines of questioning.
The Chair
Some of our witnesses will be giving evidence today by video link, while others will appear in person. It is helpful, particularly when witnesses are giving evidence by video link, if Members could direct their questions to specific witnesses. Before calling the first panel of witnesses, I remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion that the Committee has agreed. We have until 10.30 for our first panel. Do Members wish to declare any relevant interests in connection with the Bill?
The Parliamentary Under-Secretary of State for Health and Social Care (Jo Churchill)
I have no relevant interest to declare, but we are unable to see a screen. Would it be possible to erect a screen so that we can see those giving evidence?
The Chair
Yes, we can do that. As there are no witnesses giving evidence in person, it would be okay for Members to sit at the witness table, if that would be better.
Dr Philippa Whitford (Central Ayrshire) (SNP)
I want to declare an interest as a medical practitioner, although not commonly practising, and as a member of the British Medical Association.
Dr James Davies (Vale of Clwyd) (Con)
Likewise, I declare an interest as a serving general practitioner in the NHS, a member of the BMA and as a member of the Royal College of General Practitioners.
The Chair
Thank you. I am very keen that we continue this session as quickly as possible. We will now go to our witnesses. Good morning and on behalf of the Committee, thank you very much for agreeing to give evidence. Please introduce yourselves for the record.
Dr Navina Evans: Shall I go first?
The Chair
I think that would be good; ladies first.
Dr Navina Evans: My name is Navina Evans and I am chief executive at Health Education England.
Danny Mortimer: Good morning. My name is Danny Mortimer and I am the chief executive of NHS Employers, which is part of the NHS Confederation.
The Chair
Thank you very much. Members who wish to ask questions should please indicate that.
Edward Timpson (Eddisbury) (Con)
Q
Dr Navina Evans: Thank you very much for the invitation to give evidence today. I am really pleased to note the prominence the Bill gives to the workforce, and the important focus on systems working together, and working together with social care. I think that implementation will work well because we can build on what we are already doing. There is a great deal of collaboration between all parts of the system, and I can give you lots of examples if you wish of how we have developed the workforce over the past few years, particularly through the pandemic. We can build on what we have done together with other parts of the system. HEE plays a unique role because we have relationships with educators, providers of healthcare, the regulators, the professional bodies and NHS employers and other partners, as well with NHS England and the Department of Health and Social Care. We play a convening role, and we have already used that experience, ability and capacity to develop the workforce so far. We think the Bill will enable us to build on that.
Danny Mortimer: Navina captures really well the work that is already going on, not least, as she has said, through the pandemic. My members, who are the trusts and ICSs around the country, are already trying to find ways of developing joint approaches to developing their workforce, not least with their colleagues in social care, but also by thinking about different ways in which they can recruit and perhaps make employment in the NHS more accessible to people from harder, under-served communities. Some fantastic work has been going on with the Prince’s Trust, for example, around the NHS, and that has increasingly been done through the organisations that are being formalised through this Bill.
I also think that the commitments that the Government are expected to make later today, not least around investment in social care, will help organisations to work together. We have a pressing need in the health service to invest in the longer term in our workforce, but that is even truer for our colleagues in social care. Again, that is a significant step forward today, which we hope will go even further in the spending review, in helping employers to ensure an adequate supply of people in the longer term, not least with the support of Navina’s organisation, and also by being able to innovate together in developing roles that better meet the needs of the communities they serve.
Edward Timpson
Q
Dr Navina Evans: Yes, I do. I think they build on what we have already done well and strengthen our ability to go further.
Danny Mortimer: I agree with that. I think there are some risks. At the heart of the Bill, it is formalising organisations that can lead, innovate and perhaps do things differently from each other in local areas. We have a very centralised healthcare system in this country, and one of the risks is that the vision in Bill of integration and devolution to local areas is not realised, because the centralising impetus is very strong. However, the Bill absolutely captures what has now been many years of growing collaboration and integration between health organisations but also, importantly, with our colleagues and friends in local authorities and social care.
Mary Robinson (Cheadle) (Con)
Q
Dr Navina Evans: I can give you three areas of learning that we in HEE were really pleased to see. One is around flexibility and better collaboration, which meant that our students and learners had a different kind of learning experience and also were able to contribute in a very real way to the care in service. This has led us to build on the reform agenda for education and training, and we are working with partners in education, the professional bodies and the regulators to see how we can use what we have learned to enhance that.
That is the first thing; the second thing is that we have seen quite a lot of barriers between organisations and systems being broken down. Again, that is something that we in HEE feel we should make the most of, together with partners, for future ways of working. The third area is the use of technology, digital and new ways of working. We have really moved quite significantly in how we work, including in how we learn, teach and train. Again, those are areas that we are very excited to build on. In many of them we had started before, but we accelerated during the pandemic, and we will not be going back. We will only be moving forward.
Danny Mortimer: I think that Navina captures really well that catalysing effect that the pandemic has had. I think that in many parts of the country there has been a much greater sense of there being one team within localities and communities. There have been some fantastic examples of health and social care teams coming together to respond, given the particular impact of the pandemic on social care settings and on the most vulnerable members of our communities. There is more to do, but the recognition that actually there is one workforce and one team, cutting across the NHS and other health organisations in other parts of the public service, is absolutely growing.
I think that the Bill, by formalising arrangements and stretching what is expected of systems, provides real opportunities for those systems increasingly to inform the kind of national work and planning that Navina and her colleagues lead, as well as the kind of informed work that the Secretary of State and the Minister want to take forward for health and social care.
Dr James Davies
Q
Dr Navina Evans: HEE has recently been given a ministerial commission to lead on developing a strategic framework for future workforces planning. We think that this is really timely in relation to the Bill. What we feel really matters in workforce planning is driving actions and solutions. We need to be able to identify future needs and shortages, and then ensure that the systems develop plans, but these plans need to be able to access all levers at all levels. It is quite a complicated business, but we feel that it is timely for us to pay particular attention to it.
There are a number of areas to consider. We need to look at service redesign; workforce redesign and transformation; employer roles, in terms of retention and recruitment; other supply interventions, such as international recruitment; and then—this is particularly relevant for HEE—future supply through education and training. We then want to pull the system together, through our convening role in HEE, and to have two principal ways of thinking about this: the future needs more and different, in terms of workforces and people; and we want to focus on skills, not necessarily just roles. The really critical point about this commission is that it asks us to ensure that we include the regulated social care workforce in our planning, which is a real step forward. We are looking to ensure that planning should track long-term trends in demand, that we should not be too tied to short-term fiscal cycles, and that we are prioritising supply for the whole health and care workforce.
Danny Mortimer: It is very welcome that the Department has commissioned HEE to do the work that Navina has described, but the NHS Confederation is clear, alongside a whole range of other organisations that work on behalf of the health service in particular, that clause 33 is insufficient for the task that the NHS faces in workforce planning. What it sets out, as Committee members will know, is a requirement for the Secretary of State to describe the process of workforce planning every five years. We have proposed to Parliament that that needs to move from setting out the process to actually setting out the requirements that health and social care have, and to do that much more regularly—we propose every two years.
For us, what is in the Bill is positive, because it is good to have the process described for the first time, but actually, as Dr Evans has just touched on, we need to spell out what the health and social care systems need in the longer term, but also in the immediate term. In some ways, that would mirror the work of the Office for Budget Responsibility in terms of advising the Government and Parliament about likely health and social care spending. We then need a corollary that sets out what is needed to respond to that in terms of people. Health and social care is fundamentally made up of the 3 million people who work in it. We sometimes fixate on the buildings and the technology, but it is fundamentally, in its essence, a people business. We think that that is a pressing issue, not least because of the pressures we face. That is not to say that the Government have not and do not invest in workforce numbers—significant decisions have been made in recent weeks around expanding medical school places, for example. But what we do not have is one coherent, single plan that is presented to the country and particularly to Parliament, which sets out what the NHS and our friends in social care will need to meet the demands that are being placed on us by the population, their health needs and quality of life, and also of course any priorities that the Government might set for social care and health services.
Karin Smyth (Bristol South) (Lab)
Q
Danny Mortimer: It is absolutely the case that the individual organisations in the NHS, social care, charitable organisations and local authorities that make up the partnership as well as the board will remain separate legal entities. We do not see that it is desirable for the NHS to move from having 250 separate employers to having 42 employers. What we have in the NHS is a set of national terms and conditions. My organisation has a particular responsibility on behalf of the Secretary of State to negotiate those with our trade union colleagues. We see that they work well for the NHS and I detect no movement among my membership to move large scale away from those national terms and conditions, which cover the vast majority of staff who work in the statutory NHS.
What we see with ICSs is that organisations are increasingly coming together to address shared challenges. We observe that those challenges are not about pay and conditions but about supply. They are about working together to think about how to promote a specific area for people to come and work in, whether that is Nottinghamshire or West Yorkshire and Harrogate, where there has been some fantastic work in promoting careers in the sector as a whole. We see people coming together to work with directly elected Mayors around the skills agenda. There has been some really fantastic work, for example, in the west midlands, with health and social care organisations coming together with local authorities. We see similar work and engagement with the Mayor of London on the skills agenda that he is taking forward. Again, that is being done by organisations working together. That helps partners—local authorities are engaging with health and social care as a team rather than dozens of separate organisations. It also helps us promote careers that span the whole range of settings that we operate in and speaks to the particular priorities of our colleagues in social care. We see some really fantastic examples of that in various parts of the country.
Finally, we see a real opportunity to take forward the work that I have just talked to Dr Davies about. Systems, as they look at their services and their knowledge of the things that they are providing in their communities to your constituents, can inform the national plans that Navina described in her answer to Dr Davies. We can have a much greater connection between local priorities and some of the decisions that are made nationally about how we invest longer term in education. Of course, the NHS workforce is about 50% degree educated or degree equivalent. So there are significant investments that the Department of Health and Social Care, the Office for Students and the education sector make in our workforce. Being able to root that in what it is that local services need and how they are developed seems to us like a fantastic opportunity, and would help us to avoid the problems that we have got into in the last couple of decades with pressure points in various parts of our workforce.
Dr Navina Evans: I will build on what Danny has just described. You have given some really good examples of how local employers are coming together in systems to address workforce issues. I would add a bit more about how we do it and how we can do it even better going forward. Health Education England has a role in developing careers and attracting young people—all people—into the health and care workforce. We play a really big part in that. First, we have found that doing that locally, at a very local level with the communities and organisations that really understand their local populations, has been a really good thing to do. Some of the examples that Danny gave have built on that and we will move forward on that.
Secondly, we have structures in which people boards, at integrated care system level and definitely at regional level, now bring collections of the different organisations together. We have systems that are starting to think about themselves as anchor systems, which means that they can influence employment, the economy and the success of local communities.
Finally, the population health issue has been something that we have really woken up to, and we are cognisant of the fact that we have to focus on and rebalance the health and wellbeing of the population. Through the pandemic, we have learned a lot more about where we need to target our efforts to reduce inequalities. That can only be done really well through collaboration at a local level. Organisations such as mine need to work closely with our partners in NHSE, with the Department and with other national organisations to make sure that we support those local efforts to be sensitive to the needs of their particular population. It is bringing the national priorities, principles and policy into life at a very local level by making sure that we have the systems and structures in place to deliver what is needed locally. We had already started working on that—the work is well under way—and the Bill will enhance our ability to get on with doing that.
Chris Skidmore (Kingswood) (Con)
Q
“must assist in the preparation…in this section,”
but only
“if requested to do so by the Secretary of State.”
You have talked about locally led decision making and planning. Do you both agree that we need better co-creation? My amendment covers the fact that a plan should be developed and agreed by stakeholders in particular. Would your organisations welcome this amendment, which would result in an annual workforce strategy and require it to be developed by all other healthcare organisations working in this sphere?
Dr Navina Evans: From HEE’s perspective, we will deliver on the duties that Parliament decides that we ought to deliver. We feel that we have the capacity and the capability. We can organise ourselves to deliver whatever is required of us by the Bill. The work that we do is lithe—it is iterative. We do iterative planning, in a meaningful way, at the national and system level, so we will be able to respond and fit in with whatever is required of us by the Bill and Parliament.
Danny Mortimer: Thank you for the question. Absolutely, there is an opportunity for the Bill to define a wider range of stakeholders. The systems at the centre of the Bill—integrated care boards and integrated care partnerships—are central to that, and their perspectives, as we have just talked about with Ms Smyth, in terms of the needs of their population and the services they need to put in place to respond to them, need to be at the centre of the process that Navina and others would lead on behalf of the Secretary of State. That is the first thing. Secondly, there is an opportunity through those systems to broaden our conversation to include social care as well as health. That is really important to us on this day of all days, in terms of the announcements later.
In terms of the regular appraisal, we absolutely believe that five years is absolutely insufficient for the task. We also believe that it cannot just be about process. It has to be about setting out clear requirements and clear specificity about those requirements over different time periods. There is something about the short-term need, and there is also something about five, 10 and 20 years. It needs to be regular. We have proposed two years because it is a huge amount of work and that feels to us to be a minimum in terms of how regular the perspective could be, but it may well lend itself to an annual update, as you have described.
We also see that organisations such as Health Education England and Skills for Care, which operates in the social care sector, absolutely have the capacity and capability to lead this work. Their way of working, similar to the Department’s way of working throughout the preparation of this Bill, is about engaging, convening and trying to bring stakeholders together to get a broad range of perspectives. That is our experience of the long-term process that Navina and her colleagues are leading on behalf of the Department at the moment. The Bill confirming that would confirm ways of working that we are starting to see develop with stakeholders in a really healthy and constructive way.
Hywel Williams (Arfon) (PC)
Q
Danny Mortimer: There are important links with Wales, and of course with Scotland as well, in many parts of the country. There are a couple of things to say. The first is that there are undoubtedly things that the English system can learn, and is learning, from our colleagues in Wales, Scotland and Northern Ireland who are taking similar approaches in terms of how they respond to the challenges we face in social care and health. In my own organisation, we represent organisations in Wales and Northern Ireland, and there is a really rich learning that we can do there.
Secondly, in practical terms, there are good lines of communication and liaison between healthcare organisations that operate along the borders that you have described. It will carry on being really important that those lines of communication, that liaison, the financial arrangements and the sharing of care between different teams on various sides of the borders continue, and we see nothing in the Bill that prevents that. If anything, we see opportunities through better co-ordination in England at a system level to be able to help patients who travel across from Wales into England, or patients who travel from Scotland into England. If anything, I think we can improve the planning and liaison through what is in this interesting Bill.
Dr Navina Evans: We already have very strong four-country relationships, particularly in the education and training space, where we make sure that we share standards, that we do planning around the curriculum and the reform of education, that we ensure quality and that we go for improvements in the way in which we support and train our future healthcare workers. In the regulation space, we work very closely with the General Medical Council, the Nursing and Midwifery Council and other bodies, to make sure that that happens. They obviously have four-country oversight, so we already work very closely with them. Also, all our professional bodies, such as the royal colleges, have to represent members from across the whole UK. In that space, there is a lot of good work that we can continue to build on, learn from and share as a result of this Bill.
Hywel Williams
Q
There is one other point I would make, and this is more philosophical than practical. The Welsh Government’s approach to health is based on a wellbeing model. It is much more proactive than other models. I hope that, philosophically, that sort of approach is useful and interesting for you, and that you will be taking full notice of it.
Danny Mortimer: The second point, in particular, is really well made. That is absolutely the focus that we see integrated care systems taking. The engagement with population health that Navina described is about trying to gear a system much more to long-term investment in the quality of people’s lives.
We have become, in recent years—even before the pandemic—much more geared towards crisis response. That is not in the best interests of the long-term health of the population. It does not help us to address the inequities that we see in our population, and that we saw very starkly during the pandemic.
Navina may be aware of the issues around workforce mobility between the four countries. The co-ordination that Navina leads, and that we have with our professional regulators, is really important. We have a shared workforce, and we have shared approaches to education as well as things such as pay and contracts. That is really important to ensuring that the job market is stable, particularly if we experience supply issues in particular geographies or parts of the workforce.
Dr Navina Evans: I have nothing to add on the movement of the workforce between the four countries, but I take the point that this is something we need to be mindful of, and I will make sure that the issue is a priority in our conversations with our counterparts in the four countries.
On wellbeing services, that is absolutely the way in which the reform of education and the curriculum is moving. Health Education England is working with partners to develop that. Our integrated care systems, and our colleagues running services who are closest to the point of care, and who know their populations best, have been saying for some time that we need to focus on wellbeing, prevention, intervening earlier and keeping people well. That is a priority for our partners in NHS England and NHS Improvement as well. We already have programmes of work to take this forward.
Justin Madders (Ellesmere Port and Neston) (Lab)
Q
Dr Navina Evans: I will give you three points that are really important. One is the absolute priority, focus and prominence given to looking after our workforce. Again, we will build on work that we have already been doing in the last few years. For example, in the interim pupil plan, there is a very strong focus on wellbeing, culture, leadership and retention. We have been working, together with Danny’s organisation and others, on thinking with staff about retention. One thing that is really important is looking after people. There are lots of good examples of work being done all around the country to improve wellbeing and therefore retention, and to minimise or prevent burnout. This is quite high on the agenda for our partners in NHS England and NHS Improvement. It is very high on the agenda for us in HEE, because we look after our students, trainees and learners, who are also part of the workforce, and they tell us what helps to keep them well and prevent burnout. We need to start doing that work, which is part of our business, very early on.
I am pleased to say that our partners in the universities, royal colleges and other professional bodies are really mindful of this. They all have work streams around wellbeing and preventing burnout. In the Bill, we can highlight the importance of this, and build on work that is already being done to look after our staff.
The Chair
Thank you. I intend to move to the SNP spokesperson at 10.15 am, and to the Minister at 10.25; the session ends at 10.30. If we can keep questions and answers succinct, that would be appreciated.
Danny Mortimer: Noted, Mrs Murray.
I agree with everything that Navina has said, and it is a huge focus for the health service. In terms of supporting the health and wellbeing of staff, I think the Bill can go further under the terms of clause 33—it represents the conversation that we have had with them a couple of times. Absolutely we should support people and absolutely we should care for them, but if there are gaps in their rotas and in their teams that only increases the pressure on people who are already working flat-out. The pandemic has shown us starkly where those gaps and needs are, but we were experiencing them before the pandemic. There are parts of our workforce—mental health, learning disability nursing and some of our smaller allied health professions, such as therapeutic radiography—that absolutely need urgent long-term investment. We need that investment in staff as well as in the pressing need that we saw covered in social care settings and in hospitals during the pandemic. The requirement for a regular assessment of what the health and social care system requires to meet the needs of the population would help us to support that.
Justin Madders
Q
Danny Mortimer: I do not know to what extent Parliament is able to, or is willing to, pre-commit Governments to funding decisions such as you have described. Absolutely, that would bring clarity for us all in terms of what was needed, and it may well offer clarity in terms of the prioritisations that we have to make on investment in the workforce. We have seen a massive expansion in our medical workforce, particularly in hospitals, in the past 20 years, but we have not seen a similar expansion in the nursing workforce. That is not something that was clearly set out for us and for a Government to help make decisions about. I think a clearer, more effective clause 33 would help a Government to do that, and in turn help a Parliament to support a Government in that.
Justin Madders
Q
Dr Navina Evans: We expect to go back to the Minister with our findings by early March. After that, we will have a clearer understanding of when we will publish our framework.
Justin Madders
Q
Dr Navina Evans: From our perspective in Health Education England, our input is quite confined to the workforce planning. We are able to manage within our existing resources and to redefine and redeploy them. We are also able to work collaboratively with partners who are very willing to help us in this work.
Danny Mortimer: I cannot give you an exact figure, Mr Madders, but I can reassure the Committee that the way in which the proposed change will be implemented is much more about minimising the organisational disruption change that we have experienced with previous reforms, either the one 10 years ago or the one a decade before that. We are seeing a clear commitment to move staff who are currently employed in clinical commissioning groups—the Bill will disband those groups—to the new ICS organisations. That is a very positive way of managing the change rather than that experienced previously, which was hugely time-consuming in terms of management time and hugely unsettling for vital staff in terms of planning services. We are avoiding the problems that we faced in the past. Amanda and her colleagues at NHS England are to be commended for the proportionate and sensible manner in which they are looking to implement the changes, especially in terms of how they impact on people and organisations.
Justin Madders
Thank you. For the last minute, I am going to hand over to my colleague.
Alex Norris (Nottingham North) (Lab/Co-op)
Q
Danny Mortimer: We have a really constructive set of relationships in the NHS with our trade unions, on both terms and conditions and the social partnership forum, which the Minister’s colleague Helen Whately chairs and which brings trade unions and employers together.
There is an interest in how the health service organises itself, and there is an interest in how the health service and our friends in social care can better work together to relieve the pressure that our colleagues were experiencing even before the pandemic. Of course, there are other things that people are interested in as well. There are outstanding questions about long-term pay strategy, and there are other issues around working environments and support that Navina touched on. Those are really important as well.
There is a recognition, when I speak to trade union leaders and representatives, of the opportunities available through system working to improve service delivery, and therefore to help their committed members do their jobs better and relieve the pressure that they have been under for far too long.
Dr Whitford
Q
Dr Navina Evans: Thank you for the question. It is for Parliament to decide what goes into the Bill. We will, of course, work accordingly with the duties. We already work with the four nations around the foundation year programmes, we share a lot of intelligence and recruitment work and we are continuously looking for ways to strengthen that. It is an important priority for us to share learning and recruitment between countries.
Dr Whitford
Q
Dr Navina Evans: I see that we are addressing exactly those problems around where people go to do their jobs and where the placements are. Having to travel to get the right training jobs is something that we have been grappling with for a very long time in Health Education England, and I remember that we were grappling with it when I was a trainee. That is something that we focus on anyway, and if it were to be strengthened in the Bill we would, of course, look at the duties that were expected of HEE in terms of working across the four nations to solve this issue. We would be building on what we are already doing to address that.
Dr Whitford
Q
Danny Mortimer: Thank you, Dr Whitford; there are a couple of things there. On the geographical changes, what ICS leaders wanted was clarity. They have now been given that by the Department and NHS England, and they will move forward and can adapt accordingly.
On the impact on the frontline, throughout the pandemic, and increasingly before it, we saw a much greater sense of teamwork across some of the boundaries that we can create between parts of the health service, and between the health service and other public services. There is an opportunity to accelerate that in lots of our settings. That will be a positive. It will help people care better for their patients. Most importantly, it will help patients and their families to have a much more seamless experience.
This is not a magic thing—you know yourself how complicated the hand-offs and transitions between different teams can sometimes be—but this Bill formalises the recognition that we have had over recent years in England that to start to properly and truly focus on what individuals need, we have to have better co-ordination between our teams. It is not about the institution first; it is about the team first, and obviously most importantly the patient first. The absolute opportunity for us is to do those things better for the patients in between our services.
Dr Whitford
Q
Dr Whitford
This is the last question.
On the health services safety investigations body, I was on the pre-legislative Committee, where there was an aim of protecting the safe space disclosures quite thoroughly to ensure staff had the confidence to discuss very sensitive issues. In the version that is in this Bill, much more is covered by safe space protection, but then there are exemptions such as the coroner. Although staff can be summoned and made to give evidence, if they feel that that will end up being shared through a lot of disclosure exemptions, do you think they will really believe that that space is protected, in the way it is in the airline sector?
Danny Mortimer: There is a very difficult balance that health service leaders know they need to strike. The requirements around transparency to the public are much higher for the health services and for people such as you and Dr Evans, as health service practitioners. The coroner’s ability to review what happened is a really important step for families, and we are very respectful of that.
What the Bill does—this is how it describes the investigations branch—is to build on work that the NHS and the Government have been taking forward since Robert Francis’s inquiry into whistleblowing to ensure that we have cultures, practices and processes that enable people to be candid and open without fear of consequence, in terms of what has happened. We realise that that is how we learn and improve. We also realise that have a lot of work to do to help all parts of our workforce—clinical and non-clinical—feel much more comfortable and supported to raise concerns, give feedback and be honest about what happened. As you will know, there is an enormous amount of work going on across the four countries to create those kinds of cultures, but at the same time, we also recognise that we have that responsibility in terms of transparency to the public, and to patients and their families.
The Minister for Health (Edward Argar)
Q
Dr Navina Evans: I will start with the opportunities. We in HEE are really pleased to see that workforce is prioritised in the way that it has been. For us, that means that there is an expectation and an understanding of the need to tackle complex issues of future workforce planning, and that is hugely important. We can do it; it is a difficult task, but through collaboration and bringing people together, it is something that we simply must do, so that we can have more and different, and we can be really future-focused and progressive in the way that we deliver health and care. It is all down to our workforce. So that is the huge opportunity, as we see it.
There are risks. For us, one risk is that too much bureaucracy and added layers of hoops will get in the way, and the other risk is that we have to work hard to make sure that we address culture and collaboration to make this truly successful.
Danny Mortimer: The opportunity, we believe—along with colleagues across the health service—is in clause 33, going further and deeper there in terms of the assessment of need, as well as an assessment or a description of process. Clearly, what legislation cannot do is set out the kinds of behaviours that make that a well-informed and inclusive process. To reassure the Committee, though, what I do see is that the way of working we experienced during the development of this Bill, the way of working we are experiencing with Dr Evans in terms of the process she is leading at the moment—the long-term framework—is inclusive. It is trying to bring different voices in. Difficult decisions may well need to be made about prioritisation, and we understand that, but that is much easier to do and much easier to understand if it is based in that kind of process and behaviour. However, clearly, that is one of the risks.
As I have already said, we have had an increasingly centralised healthcare system over these last few years, and that is also one of the risks. If we stifle the local leadership and local innovation, and if we do not seek that local input in terms of how the development of local services needs to inform, in particular, the long-term planning for workforce, then that is a real risk for the legislation.
Edward Argar
Q
Dr Navina Evans: We in HEE think this is absolutely the right time to be doing this. We are at a moment where we have a lot of learning from what we have been through this last year. We have a real opportunity where many different pieces around innovation and improvement are coming together, and we have learned a lot from our previous experience of delivering the Health and Care Bill. For us, we think that this is absolutely the right moment to be doing this work.
Danny Mortimer: We would agree. NHS Confederation members were clear about the need for this approach before the pandemic, and I think that is even more pressing because of the pandemic. Actually, given the announcements that the Prime Minister is expected to make later today, it reinforces that need to better integrate health and social care, so the timing is very good.
The Chair
Thank you, Minister. As there are no further questions from Members, I thank the witnesses for their evidence. We will now move on to the next panel.
Examination of Witnesses
Amanda Pritchard and Mark Cubbon gave evidence.
The Chair
We will now hear from Amanda Pritchard, the chief executive of NHS England, and Mark Cubbon, the chief operating officer of NHS England and NHS Improvement. Both witnesses are appearing via Zoom, and we will run this session until 11.25 am. Could the witnesses please introduce themselves for the record?
Amanda Pritchard: Good morning. I am Amanda Pritchard, the chief executive of NHS England.
Mark Cubbon: Good morning. My name is Mark Cubbon, and I am the interim chief operating officer at NHS England and NHS Improvement.
Karin Smyth
Q
We have just heard some interesting evidence, and I want us to be very specific about our terminology when we refer to integrated care systems, integrated care partnerships and the integrated care board. In your view, who is accountable for the spending in my local area under the new arrangements? Approximately £1.5 billion is spent in the local area. In the new system, who is accountable for that spend?
Amanda Pritchard: Thank you. If I start, Mark can come in and add. In the new proposals, the integrated care board carries the statutory responsibility, on behalf of the NHS, for the allocation of spending, performance management and the delivery of NHS services within the system. That, of course, has a delegated set of responsibilities, as per the current commissioning arrangements, down to individual organisations—be they groups of GPs, hospitals or community services— for the spend within those organisations, but the accountable part of the system is the integrated care board. As the proposals set out, it has a very important relationship with the integrated care partnership, but without the line accountability for the funding flowing through that part of the structure.
Karin Smyth
Q
Amanda Pritchard: In the current structure, they are accountable through the NHS—sorry, not the current structure, because you are talking about the future structure. In the proposed future structure, they would be accountable to a combined NHS England and NHS Improvement structure. At the moment, we operate that through seven regions, and then through to the national NHSEI executive. We are, in turn, accountable to Parliament.
Karin Smyth
Q
Amanda Pritchard: We have a clear accountability to Parliament through the Secretary of State in the current structure, and the Bill is not proposing that that will change. The other thing that we should say is that CCGs have a clear accountability to involve the public and patients in their decision making. Again, in the current proposals, that responsibility would transfer through to the new integrated care system, and particularly the integrated care board. While we just talked about formal line accountability, that does not detract from the clear expectation that flows through, that the integrated care board would have accountability to involve the public and to consult with them. The transparency that is expected now of the CCGs and NHS organisations is written into the expectations and would flow through to the expectations of the new integrated care boards.
Karin Smyth
Q
Amanda Pritchard: I do not believe, although I may ask Mark to come in on the detail, that there is any proposed change to those arrangements. Mark, would you like to pick this one up?
Mark Cubbon: Thank you, Amanda. I am not aware that there is any significant change proposed by the Bill to the arrangements in place at the moment.
Karin Smyth
Q
Amanda Pritchard: I will give you a headline answer, because I think this is really important. Part of what we would welcome in the Bill is that, by working as a system, one of the things that all partners will want to do is to come round the table together to make some of those important decisions about where the investment goes. In particular, if we are thinking about capital, I know there are examples already of where organisations have chosen to invest in community estate, additional diagnostics facilities or other parts of primary care estate. In fact, Mark and I were on a visit a few weeks ago to an ICS where they were telling us about some of the work they have done on that.
Moving to looking at system funding envelopes, particularly around capital, allows much more flexibility about how some of that resource is used in the interests of the whole population and the whole health system, rather than, at the moment, where putting things into slightly more siloed funding arrangements can end up being detrimental to certain parts of the system.
That comes back to some of the guiding principles of why the NHS has welcomed, certainly, the thrust of these proposals where integrated care is concerned, because it is all about building on some of the direction of travel that has been in the NHS for some time about trying to work much more collaboratively together. This helps remove some of the barriers that currently exist, for local systems to do that.
Karin Smyth
Q
Amanda Pritchard: Through the existing capital allocation processes. Rather than just going to each individual organisation to then make their own decisions about how they spend it, it would now go through the ICB, so there is a process that allows consideration in the round of how the system spends that money most effectively on behalf of its entire population.
Jo Gideon (Stoke-on-Trent Central) (Con)
Q
Amanda Pritchard: Again, I will ask Mark to add to this if he would like to. At the moment, the proposal is that funding would go formally through the integrated care board. The expectation is that, in developing the constitution and the detailed ways of working for each integrated care board, they would describe how the decision making is done, at not just the ICB level, but the place level, with the expectation that part of the principle would be subsidiarity.
If you are looking at the most sensible place for making decisions, for big, strategic investment the oversight of the overall allocative decision making may well sit best at ICB level; if you are talking about something that might have more of a borough footprint—thinking about London—you would want a lot of the decisions about local services, community primary care services and capital decision making to support those local initiatives to be made there. There would be a number of layers within the ICB involved in that decision making, but ultimate accountability would sit with the ICB itself.
Mark Cubbon: The only thing I would add is that this is essentially why we are bringing leaders together to form the ICS body. The key thing will be how the resources allocated to that ICS can be deployed in such a way that strategic objectives can be delivered. The allocation down to place, as you have said, is important so that decision making can be as local as possible to where the service is, so clinicians and frontline staff can make the changes they want in order to deliver improved outcomes for their patients.
Jo Gideon
Q
Amanda Pritchard: I will start off, but Mark has led the work for NHS England and NHS Improvement on developing guidance to support local systems exactly in the area you ask about, on how to bring this to life and plan now for what we hope will be legislation coming into effect in April ’22. I do not want to steal his thunder on any of this.
One thing we warmly welcomed in the proposed legislation, and something we have heard about time and time again from our key stakeholders, is the flexibility. There is a minimum mandated legal set of requirements and structures, but, as you say, also an expectation that local systems will develop for themselves the structures and ways of working that make most sense for them. This is an obvious point, but what will work in Devon will by necessity look quite different from what you would want to put in place in somewhere such as Greater Manchester.
On behalf of our stakeholders, we have already welcomed the flexibility around that that has been described, but we have rightly said that, in addition to the suggested roles written into the legislation, there are some roles we would expect to see included on boards—we describe this as “mandatory guidance”. We have used that partly as an opportunity to pick up on exactly the point you make about clinical leadership and clinical representation. As a national health service, it is clearly right that we ensure that we have that strength of clinical voice.
At the moment, the mandatory guidance describes the need for a medical director and a director of nursing in addition to the expectation written into the legislation, which is that there would already be a representative from primary care as part of that ICB. Mark, you have done all the work thinking about how this is going to work in practice; do you want to pick up on that?
Mark Cubbon: Right at the core of the new working arrangements, we believe that clinical decision making and clinical input and engagement are an essential part of how the new arrangements will be put in place, so that frontline clinicians can shape how services should look and be involved in the planning and delivery of those services. In the guidance that we have put out, we are leaving a lot of flexibility for the ICB to bring in the appropriate number of clinical professionals to support those endeavours, and that is in the shaping of services, the planning and the execution of plans to deliver them.
While we talk a lot about doctors and nurses, there are 14 other allied health professions, and it is quite difficult to allow everyone to have a seat around the top table. We are strongly encouraging all ICBs to ensure that they have the right level of engagement and the right forum in place to ensure that the voices of all those professionals can be incorporated in the development of plans to deliver better services for patients and improve outcomes for members of the community. That is what we are asking all the organisations to do, and it has all been built on evidence that we have gathered from the clinical community over quite an extensive period of engagement. In fact, we published the guidance that Amanda referenced only last week, and it refers to the importance of clinical leadership at all levels: where the services are delivered at place; where services are planned for more local arrangements in the way that we have described; and then sitting more strategically at the ICS board as well.
Dr James Davies
Q
Amanda Pritchard: On a positive, it is great that so many people want a seat on the boards, because I think that actually shows the level of engagement in ICSs. In practice, this is a very organic development from where the NHS has been since 2016, when we first started talking about STPs, as they were known then. This has been very pragmatic, bottom-up and testing as we go, and it now feels as though it is very much with the grain of where the NHS is.
I am not surprised, but I am really pleased, that so many different groups want to be involved. The balance that Mark has just described, which I think the legislation gets right at the moment, is in recognising that to be functional, we have to have the right number of people around the table. At one point we added up how many there would be if you allowed everybody who wanted one a formal seat at the table, and I think Cheshire and Merseyside ended up with 63 people who would be formal members of the board. That is completely unworkable.
It is about trying to find a balance that says, “Let’s be clear what you must have. Let’s use the opportunity that we have through NHSEI to introduce both mandatory guidance—things that people have to do—and guidance that sets out what we would consider to be best practice.” We have been very clear about, for example, the need to have arrangements in place to hear from all those terribly important stakeholders, and indeed for some of the duties, as I have mentioned already, that CCGs continue to carry around engagement with patients and the public, which is the other critical voice that we do not want to lose in any of this. That is the right balance, because it allows us to use some of those tools to keep some safeguards in place to give some clear direction, but it does not try to end up with either a one-size-fits-all solution for ICBs or something that is just unworkable because of the scale.
The Chair
Thank you. I believe Mr Edward Timpson indicated that he wanted to ask a question.
Edward Timpson
Q
Amanda Pritchard: This absolutely, again, falls into the category of formalising, in large parts, the way NHSEI already works, but removing some of the slightly more bureaucratic and legal barriers that we have in place at the moment. I came in two years ago as the chief executive of NHS Improvement and into Mark’s role as the chief operating officer of NHS England at the same time. Certainly, my experience over the last two years has been that, in practice, NHSE and NHSI really do work, to all intents and purposes, as a single organisation—but, as I say, with some of the bureaucracy that is still around that—and that has been absolutely essential over the last 18 months, particularly through the pandemic.
NHS leadership absolutely has to speak with one voice and has to be able to have consistent decision making. We have to have a way of managing, where this comes up, the tensions that sometimes arise between different parts of the system, but also leading in practice that integrated working and joined-up approach, right from the top. It was really only, I think, the 2012 Act that brought in the separation formally, legally, so in a sense what we are doing is stepping back to something that was always the way the NHS worked prior to that. As I say, we are really now just formalising the way things currently work, and have needed to work over the last 18 months or two years.
Chris Skidmore
Q
Also, I wanted to ask for your views on the duties for the ICBs, particularly around research and innovation. It may be a terminology issue, but the duty to promote innovation and to promote research, through the ICBs, is only
“on matters relevant to the health service”
or
“in the provision of health services”.
It does not cover the care system. I would have thought that when we look at the very definition of an integrated care board, it should actually be promoting research and also innovation when it comes to the care system, as well as health services. I would greatly appreciate your thoughts on that.
Amanda Pritchard: It is a very good reflection on the importance of education as one of the key partners that would absolutely come round the table. I think that is where the ICS structure really helps us as well, because it allows that broader partnership construct, including education and local authorities. I would say—again, from some of the visits I have done recently—that people are really clear about the importance of things such as housing as part of the partnership, as colleagues would expect. Lots of people with different perspectives and different important roles in the system absolutely need to come together around that broader ICS structure, I think, to really give us the maximum benefit from the legislation that is proposed.
To pick up specifically on education, you are right to say that there are two parts to it. Clearly, there is a role for education providers, whether that is schools, universities or other providers. Part of what we have written into the expectation of ICSs in this core role, which is about contributing to the broader economic and social inequalities agenda within their own area, speaks directly to that. That is as much about education, training and employment within health and care as it is, of course, about the wider economy. The NHS, as an anchor institution in many parts of the country, can be an important player in that as well; so it is very clearly our expectation that education will be a key partner in all those different ways.
On research and innovation, as you have rightly noted, there is again a carry-over from the CCG responsibilities, which carry over into integrated care. We have made it clear in guidance that we see this as a really critical opportunity. Certainly, that is not and should not be limited to health. However, again, we have seen during the pandemic in the last 18 months that the power of bench-to-bedside translational research could not have been clearer, as well as the opportunities now to write in, right from the start—certainly through what we have been doing on guidance—the expectation that that research would be strongly supported and encouraged by integrated care systems as they go forward. Again, that is absolutely with the grain of what the health service wants to do and intends to do. Mark, did you want to add to that?
Mark Cubbon: Just two key points. With universities, we would expect them to be heavily engaged at place level. We have recently published some guidance with the LGA, which considered how we get place-based activities and partnerships so that we have places thriving—the guidance is called “Thriving places”. We also talk about the benefits of the university sector being involved with place-based arrangements, to do all the things that Amanda just set out.
Therefore, we certainly expect that local arrangements and local dialogue, co-ordination and planning around education for local communities can help with recruitment and the workforce contribution that it can make, but also for the betterment of the local community itself.
We would also expect, probably at partnership level, some university input, whether from an academic health science network or indeed colleagues at NIHR. We have recently been doing sessions with NIHR to talk about how to ensure that our clear ambition for this translational research and this health and care research can really be brought to the fore. It is a key pillar of activity that has seen us through some really difficult times during the pandemic and one that will also be essential as part of our recovery.
The Chair
Thank you. We now move to the shadow Minister, Mr Justin Madders, and Mr Alex Norris.
Justin Madders
Q
Amanda Pritchard: One of the really important things in all of this, of course, is that we do not over-claim for what the Bill will achieve. If I look at what has happened in the NHS over the last 18 months to two years, it is absolutely clear to me that the ability to work together has been critical to the ability of the country to respond to covid, and the opportunity now to strengthen those arrangements, write them into legislation and remove some of the barriers that exist will be an important factor in helping the health service now, in partnership with local government, education and others that we have talked about, absolutely to recover from the challenges of the last year and to continue to build on those really strong local arrangements that have been such a hallmark of the way that things have worked over the last couple of years.
But of course, that is only one part of what it will take for the NHS to respond to the challenges that we have at the moment. It is absolutely right that the NHS staff, who have worked so tirelessly over the past two years and of course beyond to look after what we now know are over 400,000 covid in-patients, get the backing and the funding they need, not just to deal with what is very much still with us, with covid in our hospitals and communities right now, but absolutely to make sure that we are as front-foot as possible in tackling the inevitable backlogs that have built up over the past couple of years.
There is a complex set of things. Workforce is critical: the support we give to the people who have already done so much for us—we continue to invest in them and support them, so that we have the right pipeline for new staff joining, the right skills and the right support. Then there is the funding that we need to do the work that we have, and the capital funding to invest in some of the transformation that has already begun and needs to continue. But also, I think the Bill provides us with the framework to continue to support that really powerful local joint working that we have seen over the last two years, and which we are already seeing really at the heart of the covid recovery within the NHS and more broadly.
Justin Madders
Q
Amanda Pritchard: It is worth saying that there are some big unknowns in the position at the moment. We just do not know, really, how covid is going to play out over the next few months and years. One of the things that colleagues have talked about, and are very aware of, is that a lot of people did not come forward for care over the past two years. One of the messages that I would like to give again is that, for anyone who is concerned about symptoms, the NHS is absolutely open for business. Please do come forward and seek diagnosis, treatment and support.
We do not know, as we sit here today with two big variables, quite how things are going to play out. What we can say for certain is that today we have over 6,000 people with covid in hospitals. It is costing the NHS more both to care for those patients safely, with all of the infection control arrangements that need to be in place—
The Chair
Thank you for that, but I just remind the shadow Minister to keep within the scope of the Bill.
Justin Madders
Q
Amanda Pritchard: Actually, in some ways that does link to what I was just saying, because—you would expect me to say this—just to reflect the reality of where we are now, covid is still with us, but we also have a real commitment and opportunity to lean in now to that recovery of routine services. I think success looks clearly like we now have the platform right to be able to continue to evidence that local partnership working is really making a difference. What does that mean? It means partnership in practice, both to deal with the current challenges that the NHS is facing and will continue to face, and to start to show that we can really eat into the backlog of routine care that we know is with us and make the commitment, which I know is felt so deeply across the NHS, to tackling inequalities and really trying to think about some of those long-term planning commitments that talked about prevention and outcomes.
We want to see progress against all those things, but we also want to continue to support local systems, as they have been all the way through, to partner together to continue to deliver things such as the vaccine programme in really innovative ways. For me, this is all about putting the NHS on a firmer statutory footing, whereby partnership becomes the way that we do things, building on what has happened over the last few years and removing any remaining barriers that we know exist and which stop us progressing with the really important job now of improving care for the population and for our patients.
Justin Madders
Q
Amanda Pritchard: Thank you for that, because from the NHS perspective, the reason we have been supportive, particularly of the integration parts of the Bill, is that it is all about what it enables us to do for patients. Mark and I have done a lot over the last few weeks and months. We have seen so many examples in practice of where it is about the ability to work in partnership, whether that is about mental health crisis lines that are partly delivered through the voluntary sector, with a bit of funding from the NHS, but with support from specialists and mental health trusts as well as primary care. It is about coming together to create those sorts of innovative services, whether it is children’s and young people’s services, such as in south-east London, or whether it is in schools, picking up where children and families have medical and health problems. It is about linking them to the right support within local government, housing and so forth.
That is the sort of thing that we have seen develop over the last few years. As I say, it has been turbocharged through covid, but what we now want to do—this is the critical part of the legislation—is to make that easier. We want to make it the norm and allow people the right opportunities to come together and think about what their population needs and what will make services. It is back to the triple aim of improving the health of the population, the quality of care for patients and the sustainability of services. But ultimately, it is about being able to work together to set up those sorts of innovative arrangements, to see them embedded in practice and to see the NHS working in an integrated way around individuals as the norm. Let me bring in Mark, because this is absolutely his operational space.
Mark Cubbon: Thank you, Amanda. Going back to what patients can expect to see, I think they can expect our local integrated care systems to continue all the efforts to engage with our communities and talk about how we are planning to provide more joined-up care for our communities, because that is one of the key benefits that we will get from the new arrangements. There will be fewer hand-offs in care and fewer organisational boundaries for patients to bump into occasionally, so that we can have joined-up conversations and talk about how things are going to be better. Our local systems, leaders and clinicians will be better placed, so that we really face into and talk about how we will reduce the inequalities and deliver better outcomes. That engagement will be really important, and I think we will build on what works well at the moment and continue to make sure that the patient point is front and centre of all that we are trying to do. We have clinicians leading the charge, in terms of the delivery of those services.
Justin Madders
Q
Amanda Pritchard: Mark, do you want to pick this one up? I know you have been leading on this issue for us.
Mark Cubbon: I will indeed. This is definitely a different change from 2012, and probably different from any other changes that have been put in place in previous times as well. We are very much approaching this in the way that we have done. From the outset, we have given a clear message and reassurance to staff who are working in CCGs on job security, so that they know that almost all posts, and the individuals holding those posts, will transfer over to the new organisations. There are not big redundancy bills attached to these changes. We very much want to make sure that the job security is there and that the roles are transferred—
Justin Madders
Q
Mark Cubbon: We do not have a figure for all the changes, but we know that the CCG cost envelope, which is attributed to every CCG as it stands at the moment, is the cost envelope that will be allocated to each of the ICSs as well. We are not expecting the running costs to be significantly different from those that we have for CCGs.
Dr Whitford
Q
Mark Cubbon: The ICB is essentially how the NHS leaders come together specifically to oversee how resources are allocated and how the NHS delivers its side of the bargain, in terms of how the rest of the ICS works and is able to support integration. The ICP—the partnership—is where we bring together other partners who will have a view, an input and a role to play in that integration agenda. That is essentially, at a very high level, the separation of the partnership and the ICB itself.
On how we get representative views from the whole breadth of the clinical community, again this was published in our guidance—we have further guidance that was published last week—which talks about the clinical community, based on all the engagement that has been done so far. The kind of arrangements that we are very likely to see are where we have clinical reference groups and clinical boards that start to shape all the representative views that give a holistic perspective on how services should be planned and how we should be delivering services for our patients and communities.
Although not every individual will have a seat around the board or partnership table, we are advising the boards and clinicians across the whole footprint to ensure there is deep-rooted engagement. We are trying to galvanise the clinical community and get consensus on the direction of travel in terms of how services should be delivered for patients to deliver better outcomes. That is what we are encouraging our local ICSs to do. We are giving as much guidance as possible, but it will be down to this local flexibility so that our clinicians locally can start to work out how they best come together to do all the things I just set out.
Dr Whitford
Q
Amanda Pritchard: I am happy to, and Mark may well want to add. You are absolutely right that when the NHS went out to consult as part of the exercise that we undertook back in February, we were describing a single board structure at that moment. It is a change that we proposed to Government on the back of the stakeholder feedback that we had, particularly from the LGA, which suggested the dual board structure, partly because it gives the real clarity, as we talked about earlier, about where the money flows and where the accountability for NHS service delivery sits. It therefore allows a wider partnership to play in, with a particular view to all the other aspects of population health and the wider agenda. That is not where we started, but it is where we now feel very comfortable, in response to the strong stakeholder feedback.
Dr Whitford
Q
Amanda Pritchard: Again, you are absolutely right, and that is a risk, which is why we started where we did. What is now described—the requirement to have regard to and respond to that overarching strategy—is the safeguard that means you cannot have the NHS in any way separated from that broader ICS structure, and from that wider strategy for which the partnership will be responsible. As we have discussed, I am not expecting that that will necessarily be the only way in which wider partners are brought into the ICB, but the fact that there will be a local government seat on the ICB is another important way that stops the NHS just working on its own.
Dr Whitford
Q
Amanda Pritchard: It has quite a specific, technical meaning, so from our point of view we would understand that to be a very clear direction.
Dr Whitford
Q
Amanda Pritchard: I might let Mark come in on this, because it is something that we have thought a lot about. You are absolutely right that the purpose of all of this is to make sure that we are improving care and services to patients, but with regard to that triple A, it is also of course about the sustainability of services and the broader population health challenge. Part of the structure that the Bill will allow us to put in place on things such as the provider collaboratives absolutely begins to put back firmly at the core of how we do our business procedures such as the clinical peer review.
We have now got the data through things such as GIRFT, which means that we can incorporate it formally in a structure that brings together the providers and also crosses pathways, so that we are not dealing with acute on its own, or with mental health or primary care on its own. We can then look at each against best practice and see how different parts of the system are performing, assess some of the challenges and collectively think about how to come together to secure improvement. That is already happening, but the Bill will allow us to make that much more at the core of how the systems approach local improvement. Mark, would you like to add to that?
Dr Whitford
Q
Amanda Pritchard: Yes. There is still a huge amount of national audit work that does take place. Thank you for mentioning GIRFT, because we do have some other really important improvement programmes that are very data driven, which have an important place in this conversation. We certainly see the proposed legislative changes as a real opportunity to bake that way of working in, not just nationally but through systems coming together to do it as part of their local activity as well.
Dr Whitford
Mark, do you have anything to add very briefly?
Mark Cubbon: One of the major changes is a move away from competition to much more collaboration, and that is one of the things that the Bill sets out. That is what we believe in and what people are looking for, from what we hear from the service. With that collaboration what we start to see is much more accessible input from people and organisations, so that we can share and learn from each other and start to instil the best practice that we see in one part of an ICS, and have the opportunity to discuss that and see how it can benefit other parts of the ICS, and so reduce variation and deliver much more consistent care to patients.
Before I started my job at NHSEI, I was chief executive of an acute hospital on the south coast. While there have always been opportunities for colleagues to come together and discuss how best to approach a challenge, and to ensure opportunities for sharing good practice and learning from each other, the Bill starts to take down barriers and is much more enabling than what came before. Yes, of course clinicians have informal ways of coming together to look at how changes can benefit patients, but these structures are intended to allow a much greater exchange of ideas, which will be of great benefit to patients; hopefully we can start to implement those ideas at greater speed.
The Chair
Before I call the Minister, I remind Members that there will be a hard stop at 11.25 am. If witnesses could keep their answers as brief as possible, it would be much appreciated.
Edward Argar
Q
If I recall correctly, your predecessor, now Lord Stevens, says that about 85% of provisions in the Bill were things that the NHS asked for in its 2019 consultation. Do you recognise that figure, and how would you characterise the approach that has been adopted to the development of the Bill?
Amanda Pritchard: Thank you. I would struggle to give an exact percentage, but the Bill certainly contains widely supported proposals for integrated care. We have been working very closely with our stakeholders, colleagues across the system, you and others to ensure, as far as possible, the same approach to consultation, listening and hearing. You cannot please everybody all the time, but we want to reflect what feels genuinely like a consensus view about what will best help the NHS deliver on all the challenges we have discussed. That is reflected in the Bill, so thank you for that. As it goes through Parliament, we very much want to continue to see that spirit of joint working, consensus building and engagement, so that when it hopefully becomes legislation in April ’22, it lands with all the support that I think it currently has.
Edward Argar
Q
Amanda Pritchard: As I said, I genuinely think that our experience across covid has strengthened the argument for moving to legislation now, because our way of working in the past two years has been characterised by integration and partnership, and that is how the NHS and partners need and want to work—now and as we head into next year, facing that set of challenges that people are so very committed to continuing to tackle together. Yes, Minister, I think this is an important Bill. The integration agenda is not the whole answer, but it is an important component of it, and the sooner it comes, the better.
Edward Argar
Q
Mark Cubbon: All I would say is that collaboration and partnership work is a key feature of our response to covid. It is ever more critical, in the light of the question of how we will approach our recovery. Fantastic working has been enabled locally through necessity; now, we hear from the whole service that we want to build on that. We look forward to the future with that in mind; the Bill allows us to do that.
The Chair
As there are no further questions, I thank the witnesses for their evidence. That brings us to the end of our morning sitting. The Committee will meet again at 2 pm in this room to take further evidence.
Ordered,
That further consideration be now adjourned.—(Maggie Throup.)
Health and Care Bill (Second sitting)
Tuesday 7th September 2021
(2 years, 7 months ago)
Public Bill CommitteesRead Full debate Health and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 7 September 2021 - (7 Sep 2021)
The Chair
This is the third panel. We will now hear from Simon Madden, the director of data policy at NHSX, who is appearing in person. We have until 2.30 pm for this session. Good afternoon, Mr Madden. Could I ask you to introduce yourself for the record?
Simon Madden: Good afternoon. I am Simon Madden, director of data policy, NHSX.
Alex Norris (Nottingham North) (Lab/Co-op)
Q
Simon Madden: We have obviously set out the position. The Government have set out the position in respect of GP data for planning and research, in terms of taking a pause and having a conditions-based approach, rather than a clear timeline for the commencement of that. Above all else, I think that the overriding need for trust and transparency—to build public trust in the use of health data—is vitally important, and the ways in which this is governed need to be transparent in such a way that the general public can see quite easily how their data will be used.
Indeed, I think it is a responsibility on Government and those of us in the health and care system more broadly to really promote the benefits of sharing data. It is a public good and, while putting in place sufficient safeguards and then giving the public the opportunity to opt out of that process if they are not convinced by those safeguards, it remains a public good and contributes to the broader health, if I can put it that way, of the health and care system.
Alex Norris
Q
Simon Madden: Essentially, they are separate in terms of process. The general public will not make a distinction between any things to do with their health data. Whether it is the draft data strategy that we published earlier in the year or the GP data for planning and research programme, to the general public it is about their health data.
It is incumbent on us to make sure that we have a strong narrative that reflects all aspects of health data. We need to reset the relationship between the patient—the citizen—and their health data, so that a perception does not arise that we are taking their trust for granted, because that is certainly not the case. The provisions in the Bill around data are meant, to some degree, to provide clarification where there is some confusion in the current framework about how and when data could be shared.
The Chair
I will come to you in a second, Karin. I am just trying to balance it between the respective parties.
Dr Philippa Whitford (Central Ayrshire) (SNP)
Q
Simon Madden: I completely understand that. We have to be very clear about what we mean by “commercial companies”, because pharmaceutical companies that develop treatments and vaccines are also commercial companies.
Dr Whitford
Q
Simon Madden: I get that, but there is no doubt that, in order to improve treatments, we need to contribute to research in some way.
You are absolutely right. It goes back to my trust and transparency point. One of the things that we signalled in the data strategy particularly was a movement towards trusted research environments. That is crucial. In some ways, what we have announced on GP data for planning and research is an acceleration of that work. We have said that data will not be shipped around or disseminated; it will be accessed only within the confines of a secure, trusted research environment, with full transparency about who has access, who runs what queries, and so on. It will be held and will not be shared. That is the general direction of travel that we want to see, and that is why we set that out in the data strategy.
We do not have to make a choice now between enabling access to data, or sharing data, and protecting privacy. Technology has allowed us to create environments where it is perfectly possible for data to be accessed safely and securely, with strict safeguards, without privacy being compromised.
Dr Whitford
Q
Simon Madden: Data will not be handed over in a trusted research environment; it is only accessed in one place.
Dr Whitford
Q
Simon Madden: I completely understand. That is why I mentioned that it is incumbent on us to have not only the right safeguards in place but the right narrative and to engage with the public so that they understand what those safeguards are, how they operate and how they can opt out of the system. One of the things we have been looking at in developing the final version of the data strategy following the engagement is how we can do much more on public trust and transparency. It is not just about a one-off marketing campaign; it is about an ongoing public dialogue and involvement of the public in future policy considerations. Again, it goes back to that resetting point; I think this is a reset moment. Technology now allows us to go that bit further than we have ever been able to go before in terms of protecting privacy, but we have to be in a stronger position to explain that to the public and how it all works.
Karin Smyth
Q
Simon Madden: Forgive me, but I will take full advantage of the fact that I was not there and have not seen the statement that the Prime Minister made. A feature of our plans set out in the data strategy—not so much in terms of the Bill itself—is for each integrated care system to have a basic shared care record, so that throughout their whole health and care journey a patient or citizen does not have to do simple things like repeat test results or repeat their prescriptions, and so that their care journey between health and social care, with provisions for safeguarding and safeguarding information, is seamless.
The Minister for Health (Edward Argar)
I will ask a couple of questions, if I may, Mr McCabe, and then perhaps the hon. Member for Nottingham North can come back in if we have time. Moving away from what has been explored by colleagues so far on the extremely important protections around data sharing and data use, can you set out how the changes set out in the Bill relate to and will help you deliver the data strategy that you have in place?
Simon Madden: It is important to set out that these provisions alone, while they do much within the Bill, must be seen in the context of that wider data strategy. They support our ambitions, and the integration and collaboration that is described in the Bill will be a huge enabler for the ambitions set out in the strategy itself.
The provisions themselves focus to some extent on tidying things up and providing a degree of clarification. I mentioned the provisions for clarifying NHS Digital powers: currently, there is sometimes confusion around what data NHS Digital can share and in what circumstances it can share it. Sometimes, that leads to problems when data may need to be shared for very good reasons—for justifiable reasons—but NHS Digital is sometimes not convinced that it has the legal power to be able to share the data. This puts beyond doubt its ability to share data appropriately.
Another provision is on information standards. We are making a provision in the Bill to mandate standards for the storage and collection of data. That is important to ensure that data can flow between different IT systems and organisational boundaries in the health and care system. That will then help individual patients and improve health outcomes. We want to ensure that providers of health and care services purchase only technology that adheres to that set of standards, so that we have that interoperability, and those improved outcomes for patients, through that mandation of information standards.
We have also put in clauses around sharing anonymous health and care information, which help to essentially set a duty to share anonymous information when it is legally permitted to do so. One of the lessons that we have learned over the pandemic has been that, although it is perfectly permissible for data to be shared—it is legally permissible to do so—the shift from “can” to “should” has a great impact within the system.
Our invoking of the control of patient information regulations under existing legislation, to enable that sharing of data and to say, “You should share data in these circumstances,” has significantly helped the free flow of data safely and securely within the health system. That has had an impact on patient care. I think that the duty to share anonymous data will help to put on a more permanent footing some of those provisions that we have seen during the pandemic.
Edward Argar
Q
Simon Madden: I think it is a fair reflection, to a certain degree. I think that the thing that we must always be conscious of, particularly in the field of data and technology, is that we see advances but legislation often does not keep up with those advances. It is about ensuring that everyone understands their responsibilities—not just that the public understands the responsibilities of organisations that are safeguarding data, but that those organisations themselves have the right powers to be able to share data safely and securely. I think it is evolutionary in that sense, but it is also about making sure that the provisions in the Bill are keeping pace with the development of technology and how data is used in the real, modern world.
Alex Norris
Q
Simon Madden: I should perhaps caveat my previous comments by saying that they very much are, in our mind; it is all about health data. The focal point for us at the moment, which we are working through with Ministers, is the formulation of the final version of the data strategy. Of course, the legislative provisions are within the data strategy. It is very much the case that the publication of that document, I think, is the right moment for that reset where we have more intensified engagement with the public and we really step up the narrative around how health data is used. As one of your colleagues said, the real detail comes in regulations, if there are any regulations around that; and of course there would need to be consultation before the regulations were put in place.
Alex Norris
Q
Simon Madden: Obviously, interoperability is absolutely key. The information standards piece that I spoke about is part of that, but also, outside the legislative piece, work is going on to create a unified data architecture. This is not about driving or having everything from the centre, so that everybody uses the same things, but about making sure that the architecture enables that interoperability so that the systems can speak to each other. There is certainly a degree of levelling up to do in terms of digital maturity, which is another area in which NHSX is involved, supporting the Department and NHS England. But yes, interoperability is key. We are not there yet; we have some way to go to make sure that everything will flow as it should and the systems speak to each other.
The Parliamentary Under-Secretary of State for Health and Social Care (Jo Churchill)
Q
Simon Madden: The best example is something that I have already cited to a certain degree, which is the shared care record. To some degree, that would happen irrespective of whether ICSs and the Bill were in place, because health and social care need to come together; that is something that needs to happen in any event. But what the Bill does is create the proper framework of integration and collaboration. There are other powers in the Bill, for instance the duty to co-operate and collaborate, that I think are going to be absolutely crucial. From a public perspective, they see the NHS and see one organisation, whereas we all know that it is a confederation of organisations, each sometimes with different aims, pulling together. The ICS structure set out in the Bill, plus the data provisions that support that broader approach, will help provide that free flow of information so that clinicians and care professionals have access to the information they need to be able to treat patients in the most effective way.
The Chair
Anyone else? I will assume there are no more questions. Mr Madden, I thank you very much for your evidence.
Examination of Witnesses
Saffron Cordery and Matthew Taylor gave evidence.
The Chair
This panel is mixed. We have Saffron Cordery, the deputy chief executive of NHS Providers, who is joining us remotely via a video link, and Matthew Taylor, the chief executive of the NHS Confederation, who is appearing in person. Can you hear us okay, Saffron?
Saffron Cordery indicated assent.
The Chair
In that case, Saffron first, then Mr Taylor, can you introduce yourselves for the record, please?
Saffron Cordery: Yes. I am Saffron Cordery and I am deputy chief executive at NHS Providers.
Matthew Taylor: I am Matthew Taylor and I am chief executive of the NHS Confederation.
Karin Smyth
Good to see you both. Thank you for coming. I want to talk about accountability. I asked NHS England this morning about how accountability works in the new system and it was clear that local accountability lies with the integrated care board—the chief executive and the finance director, in the first instance. We were then taken through the system up to NHS England and Ms Pritchard then said “through Parliament”, which she corrected to “through the Secretary of State through Parliament”. I asked at what stage the Secretary of State becomes involved in the accountability, a question that she did not answer and which I would like you both to answer for me.
We have also heard that the Bill is something the NHS asked for. I have not met a single person working at any level in the NHS who says that the powers given to the Secretary of State directly, added to the Bill after conversations with the NHS, are a good thing and are clearly workable. That is my pretext.
Perhaps I can give the example of a constituent who came to me about ear wax removal, which was a subject that concerned him greatly. Will I write to the Secretary of State as a Member of Parliament to ask him about the lack of ear wax removal services in my integrated care board area, or will the chief executive be the final arbiter of such decisions? Mr Taylor, do you want to go first on behalf of the confederation?
Matthew Taylor: Yes. There are two points here. The first is around the structure of accountability at the centre and while that is important, ultimately, it is a less important consideration for health service leaders than the relationship between central accountability and local accountability. That is the focus of the major concern we have about the Bill: the extension of the Secretary of State’s powers in relation to reconfiguration, which we think is a mistake. We think the system, as it is, is not perfect but works pretty well. For the Secretary of State potentially to be embroiled in making decisions not just about major reconfigurations, but really relatively minor reconfigurations runs the risk not only of delaying necessary changes in the system, but of putting less emphasis on the views of local people and of clinical advice.
Representing my members, while the question of the relationship between the Secretary of State, Parliament and NHS England is one that we take an interest in, the issue of the relationship between the centre and local accountability is stronger. Where constituents write to their MPs, the Secretary of State or wherever when they have a problem, they will continue to do so, but I hope in such a system that the first thing to happen to such a letter is that it would be sent back to people locally who could address that issue in a local way. It would be ill-advised for a Secretary of State to try to involve themselves in a question like that.
Saffron Cordery: I agree with Matthew’s point. It is this central-local relationship that is absolutely critical to those who are working on the frontline—trust leaders from my perspective, and from NHS Providers’ perspective. Coming back to some of your points about the NHS supporting the legislation, I think that is absolutely right. The NHS has come together to support the direction of travel of this legislation, but I think it is worth saying that that agreement was based around an August 2019 set of proposals, when the whole NHS came together on the basis of some recommendations from the Health Committee. It is important to remember that the legislation has changed somewhat since then. We have had a number of elements added to the Bill that sit around the central bit that the NHS agreed with, which probably changed the context somewhat. It is worth remembering that the local reconfigurations issue that Matthew Taylor raised is a very important one.
There are elements as well in the nature of the relationship between the Secretary of State and NHS England in terms of the operating context and its ability to intervene in what goes on nationally, and the knock-on effect locally on trusts. There are some really big issues there, which come together.
The other thing to say is that, often, Secretary of State powers may seem like small elements, but taken together, the cumulative impact can be seen to erode that local accountability. We would hope, whatever happens, that if someone has an issue with ear wax removal, they speak to someone at the most appropriate level to get something done. That is what subsidiarity is about: the delegation of powers to the most appropriate level, and it is really important. It is also important for accountability, because you cannot have a Secretary of State saddled with taking a thousand tiny decisions in an organisation and a system as complex as the NHS. That is one of the challenges of this local reconfiguration issue that is arising.
Dr James Davies (Vale of Clwyd) (Con)
Q
Saffron Cordery: The experience of the pandemic, which is a seismic and far-reaching event, really put the frontline of the NHS and other local public services in the frame for delivering for their local communities, and for supporting each other and helping each other out with mutual aid. What we saw there was one very good and important example of how local partnership working, local collaboration and local integration was working in very different ways up and down the country.
We had some common features of all integration, something you would expect at a time of crisis, where there is a lot of command and control and procedures that go on in a state of civil crisis such as this one. We also saw different communities responding in different ways. That is one of the most important points that I want to make about this legislation. In terms of collaboration, we have to see a piece of legislation that is as enabling and permissive as possible. Obviously, legislation has choices. You go down different routes. Really prescriptive legislation will not help in this situation, though. We have to reflect the progress made in some areas and the need for encouragement and support in other areas to get where we want all ICSs to be: that is, really effective and delivering what local populations need. A permissive framework is critical. Going back to your question, it is right that the pandemic has shone a light on both the potential of ICSs and collaboration in particular and the challenges we face right now in implementing any new proposals due to the operational pressures facing the NHS, local government and other public services.
Matthew Taylor: I agree with Saffron. There have been some very good examples of local collaboration, such as the vaccination programme and reaching out to communities where initial take-up may not have been what we had hoped. There is some really impressive work there. That work presages the wider commitment within the health service to a strategy of population health, which addresses not only those people who express demand but those who do not. We wish that they would, because that is one of the things driving health inequality.
I have been at the confederation only three months, so I look at the legislation from the perspective of a wider interest in public policy over 30 years in government and outside it. This is a very interesting and innovative example of policy making. We have these integrated care systems in large parts of the country, so the policy has already been enacted ahead of the legislation. Though that may raise democratic issues, it enables us to see in practice how people are taking the principles of service integration and focusing them on population health. Despite the challenges of covid, a challenging funding context, and the issues around social care—which are hopefully being addressed in one way or another—we see across the country that there has been a whole array of interesting bits of innovative, collaborative work around issues of population health, prevention and addressing health inequalities.
I want to emphasise a point Saffron made. If you look around the country, you see some systems that are well advanced in their collaboration and other systems that are not. This is for a variety of reasons; in some cases there are issues to do with boundaries and such. Like Saffron, I think it is really important we have a permissive regime that allows these systems to evolve at a pace that is right for them and the places in which they operate. Over time, the systems will move forward, but it is actually a really effective way of working. It would be a mistake to try to impose exactly the same way of working on every part of the country. It would mean those who were ahead will be pulled back and those who are not quite ready to make integration work will be compelled to tick boxes, as it were, rather than work on the development of the relationships that we need.
Edward Timpson (Eddisbury) (Con)
Q
Matthew Taylor: That is an important point. Let me be completely open about the conversation within the confederation about this issue, for example. We have a mental health network representing mental health providers. Their preference would be to specify the need to have a mental health leader on the board. We as a confederation recognise that view and represented it, but that is not our view overall. Our view is that, partly because configurations differ from place to place—in some places, mental healthcare and community are together, for example—but for a variety of reasons, we would not want to specify further the membership of those boards. Again, that is to maximise local flexibility.
If people feel their voice is not being heard, then that is something they are going to say. We will have to see how this system evolves, but let us start with—going back to a word used earlier—the permissive regime and see how that goes, because after all it is in the interests of everybody in the local health system that they hear the voices they need to hear.
Saffron Cordery: I agree. This is a thorny issue but I suppose it is one of either, depending on how you look at it, the opportunities or the casualties of creating another level of governance in a local system. When you are thinking about putting collaboration on a statutory footing, you have to surround it with some kind of governance to ensure the effective operation of that body.
It is a tricky issue. You cannot have an integrated care board—the board that will govern how funding flows through and how priorities are agreed, decided and implemented—that is so enormous that it becomes unworkable, but there has to be a clear balance between making sure it is not only the big and the powerful who are represented there, but also all the rights and appropriate interests. There are a number of positions specified in the ICB board arrangements, and it will be interesting and important to see how different ICSs use those roles, particularly the non-executive or wider partnership roles that are specified, in order to have a broad range of voices around the table.
It is worth remembering that many other organisations and structures will be taking part in the ICS arrangements. You will have things like provider collaboratives, which are not in the Bill but feature heavily in the guidance that comes from NHS England and NHS Improvement, which are precisely about organisations working together to deliver on local priorities. Many of those are led by mental health organisations focusing on what they need to deliver.
There are other structures within these arrangements, but no one would say it is ideal. It is not the most ideal solution, but it is very difficult to get to a final configuration that is both workable in terms of numbers and reflects the multiplicity of voices in a locality. It is important to have the right engagement at every single level and the right channels feeding up information and priorities, and to understand what is really important in a system.
Matthew Taylor: Today the Government have been talking about the importance of integration in the context of its announcement on health and social care. One of the big questions is going to be about the powers that are devolved within systems to places, and I think it will be at the place level that we will see service integration. The evolution of place level forms of accountability is an important part of that, and again a reason why it is really important to allow these structures to evolve locally. I suspect that in some areas more power will be held at the system level and less at the place level. In other places, it will be the reverse, with most of the action taking place at place level. That reflects the nature of places, the legacy of those places and the relationships that have built up.
Chris Skidmore (Kingswood) (Con)
Q
Matthew Taylor: My area of expertise before coming to the NHS Confederation was work and the future of work, on which I advised the Government, and one of the things I know from that work is how quickly the world of work is changing. It is impacted by a whole variety of things—not least, of course, substantial technological change. In a world where work is evolving very quickly and population needs are evolving, five years is simply far too long. If it were one year, we would be happy. We have fastened on to two years. That would be the minimum that we would want as a gap between assessments of workforce need.
It is also—to emphasise the point that I think you are making—important that this review gathers evidence from a whole variety of bodies, because an enormous amount of extremely good work is taking place around work. Predictions of workforce need are imprecise, so hearing from a variety of voices is important. This should be an independent process, in which independent expertise is brought to bear; there should be wide consultation with those who think about these issues; and a two-year plan would, I think, be an improvement on what is in the Bill.
Saffron Cordery: We also support this amendment and the work that has been done by the confederation and others on this. There is one other element that I would add to this that supports this perspective. It has been really hard, across NHS workforce planning, to light upon one version of the truth, in terms of workforce numbers. Anything that starts to move towards a collective perspective on workforce needs and workforce planning will be absolutely critical.
Getting an agreed perspective on how we create that figure will be fundamental. In my time working across the health service, there have been many different perspectives on workforce—on the gaps, the numbers who are in roles, and what those roles need to be. It is important to have lots of views, but I think this is also important. Although, as Matthew says, it is not a precise science, we need to light upon a version that is independently agreed, but that we all sign up to as the numbers we are working to.
Karin Smyth
Q
The Bill falls apart because of the governance arrangements and the accountability, which does not follow the logic of place-based commissioning. My solution for the Government, should they wish to take it, is something around a good governance commission, based on the previous appointments commission-type process. It would bring in skilled people, with clear role descriptions, clear skills and a degree of independence. It would have the trust of local people, and would bring these very powerful chief executives together with local leaders to explain why, in Bristol, you cannot have ear wax removal, or why you are closing certain provision and opening it in Derbyshire or wherever. Have you had an opportunity to look at my proposal for a good governance commission and locally accountable chairs—perhaps elected, or appointed? What do you think of that as a solution that would bring power and accountability closer to local people?
Saffron Cordery: The issue of accountability is absolutely fundamental. One of the things we have not talked about much in this sitting, and which is not talked about that much, is the presence of two bodies in the system. We have the ICB, but also this partnership body that brings together a number of wider partners—particularly local government—with democratic accountability, which I think is really important.
I am wary of adding too much into the structures in the Bill. I understand your perspective on permissiveness, and we need to make sure that there are checks and balances across the whole system, but I would be wary of adding in another structure alongside everything we have. One of the features of this legislation, as I have said throughout the process—we have met the Department of Health and Social Care and talked to their Bill team, who have been very open and helpful—is that it does not really streamline in the way that it thinks it might. It adds to existing structures and processes, rather than starting from a clean sheet of paper and building something that might be deemed to be a good enough model; we will never get to the perfect model.
Right now, what we do not need is a root-and-branch dismantling of NHS structures and something wholly new put in their place, but I think there has been a missed opportunity to look at where we could streamline more. On that basis, I think it is important not to add more in, and it is fundamentally important that we look at the different roles and structures that already exist. From a trust provider perspective, working both at place and within provider collaboratives, and looking at the governance of unitary boards with non-executives and in some places also with governors and members, we see that there is that element of engagement with the community that you perhaps do not see in other places. I do not think it speaks entirely to your cartel point, but it is a step along the way that is well established and well used in many places.
This is a thorny and tricky issue. Using existing structures of accountability will be really important, as well as using the new ones, but I would not want to see anything new added in there.
Matthew Taylor: I largely agree with that, but another point is that if there is a broad policy thrust in this legislation, it is away from a medical model of health towards one that focuses more on social determinants. In the best partnerships—we talk often about West Yorkshire and Harrogate, for example—there is an incredibly strong relationship between health service leaders and local authority leaders. That will be a critical factor in the success of the system. When I look at the best practice emerging in the integrated care systems on issues such as prevention and population health, I see leaders starting to talk about issues such as housing, employment and public space, recognising their importance to health. In one way, that is a progressive move, and one that will probably lead to a louder voice for a variety of local interests, if we understand health much more in these socially determined terms, rather than simply through the medical model.
We had a big announcement today about social care reform, and there is a set of issues that are not in this Bill—issues around health and social care integration, how it will work and how accountability will work. It remains to be seen how the Government address that question.
Dr Whitford
Q
Matthew Taylor: It is a challenge.
Dr Whitford
Q
Matthew Taylor: Whenever Government are faced with issues of boundaries, there is no solution that will not upset a lot of people, and this of course has been a vexed issue. I go back to the need for local flexibility. I will not name particular systems, because I do not want to speak for them, but I am thinking of two systems. In one, there have been many years of integration and collaboration, and an enormous amount of collaborative work. There, boundaries are probably much less important than they were in the past. In the other, an ICS is being established that will oversee two places—a city and a county that do not have an enormous amount in common. There, the ICS will have to develop its own proposition about the value that it will add. It would be a mistake for that system to want to draw up an enormous amount of power from two places that are working pretty effectively and would not benefit a great deal from deep integration.
The pattern is different from place to place. That is why we need to allow things to evolve in the light of local circumstances. It is always difficult when boundaries are not coterminous or shift. All I can say is that health services are used to these kinds of challenges, and most who have reached the top have probably worked through at least one of these challenges in the past, and know how to go about it as best they can.
Dr Whitford
Q
Matthew Taylor: That is a fascinating question. My view, which goes back many years, is that you need the right combination of strategy from the centre and identification of the right thing to do, where there is clearly one best thing to do, although Whitehall has a slight tendency to exaggerate the number of areas in which there is one best thing to do. Then you need peer-to-peer, or horizontal, learning. Providers and the confederation do a lot of work with our members to share best practice. A week will not pass without one of us publishing something around good practice, and bringing our members together to share that. This is another reason why it is important to have local difference. It is in a system of local difference that you will get more innovation. As long as you have innovation coming through, really strong organisations spreading good practice and a centre that focuses on where it can add value, you have the capacity for a self-improving system.
Dr Whitford
I was going to ask Matthew all my questions, and then go to Saffron with them all.
The Chair
Well, you only have about two minutes.
Matthew Taylor: By the way, I think it is important for us to learn from Scotland. We have been having a conversation in the confederation about the importance of recognising that we have different health systems now across the UK, and that there is an opportunity here for good learning.
Dr Whitford
Saffron?
Saffron Cordery: In the interests of time, I will say that I do not have a huge amount to add. Peer learning, peer challenge and peer support are absolutely critical. Variation, in its broadest sense, is important, and you can call that innovation or whatever you want. How you respond to local circumstances is critical. That is why cookie-cutter mode does not really work. Going back to your point on boundaries, they are, of course, a vexed issue. I know from my time in local government how vexed an issue it is there. Any kind of local government reorganisation can tie you up for years and years. It is worth remembering that boundaries were challenging at the start of this process. A number of STPs, which were the forerunners to ICSs, had boundaries imposed on them, rather than choosing those boundaries.
There have been a few policy developments that perhaps have not been as widely discussed as they might have been, including the fact that coterminosity with local government, although not necessarily the wrong step, was brought in relatively late in the day and did lead to some of the later boundary changes, as we have seen. I am not saying that that is wrong, but it demonstrates the need for wider discussion, consultation and engagement with the NHS and local government system as a whole before the decisions are made to help understand how best to do it. Sometimes just saying that it must happen and decreeing that is not the best way of making something a smooth operation that gets the best out of local systems. On occasions, there is something in the process of policy-making that could be looked at.
Justin Madders (Ellesmere Port and Neston) (Lab)
Q
Matthew Taylor: I defer to Saffron on that one.
Saffron Cordery: I think this is one of those elements that we have seen quite a lot of throughout the legislation in terms of where is the recourse—that is not the right word, but I cannot think of another one right now—if things go wrong. Collaboration by its very nature is a positive process where willing parties come together to reach agreement. Everyone’s hope and aspiration is that that is how ICSs will work overall, and that is how the ICB and ICP will work together. It is not currently clear how there will be recourse to arbitration or dispute resolution, if you like, in the process of this legislation. We have seen an optimistic approach to how this legislation has been brought together—rightly in some senses—and of course we do not want a situation where we are anticipating that the evolution of a new way of working will not be functional. At the same time, the role of legislation is to anticipate what can go wrong, as well as to support what needs to be done. It is not yet clear how some of this will shake out in terms of where ICBs and ICPs need to turn to should there be challenges, issues and disagreements. We have to remember that those bodies, once they have their independent chairs and accountable officers and chief executives, sit within the NHS system, so they sit within the regional NHS England system and within the overall NHS system. Routes will be pursued, but at the moment it is not clear to me how disputes, for want of a better word, will be resolved.
Matthew Taylor: The only thing I would want to add is that during covid, we have understood the scale of health inequalities. The evidence has been that those inequalities are growing. That has demonstrated that we need a conversation between the health service in relation to how it deals with the demand that is presented to it and the wider question about how we address population health. In some cases, that might mean that you have some creative tension between those two levels. As Saffron said, it will come down to the quality of relationships, and if those relationships break down, I am sure that the centre will need to intervene to address that because the system cannot work if it breaks down. But the fact that those two bodies might have a slightly different emphasis and focus is probably a good thing because this debate about how we best use our health resources to address population health and health inequalities is an important debate for us to be having nationally and locally. Let us face it, we have not got this right up till now.
Justin Madders
Q
Matthew Taylor: Yes, unfortunately that is our understanding, and we think that it would be a retrograde step. It is not a power that I would want if I were a Secretary of State and I wanted to focus on strategic policy questions. I would not have advised the Secretary of State to want those powers.
Our view would be that we should remove the extension of the Secretary of State’s power entirely, but, failing that, we should put some guard rails on in relation to hearing the views of local health overview and scrutiny committees, getting local clinical advice on what is best and having a public interest test that should be passed. If those guard rails were in place, we could cope with this.
What we do not want is a chilling effect on the capacity of local leaders to make the decisions that they need to make to use their resources effectively. The third element of the triple mandate is the effective use of resources, and that involves making decisions at a whole variety of levels around how you configure services. If you feel you are going to go through that process and potentially engage local populations in difficult conversations, and then at the end of the day a local MP, for whatever reason, is going to kibosh that by appealing to the Secretary of State, why would you embark on the process in the first place? That is why, while we are very supportive of the Bill, as you have heard from both Saffron and me, we do think that the powers of reconfiguration are the Achilles heel. I appeal to you to recognise that that is unnecessary and goes against the spirit of the Bill.
Saffron Cordery: I wholeheartedly support what Matthew says, and it speaks to a point I made earlier about adding to existing structures in a way that really is not necessary. I notice that you have representatives from the Local Government Association as witnesses later on. I am pretty sure that they will have some strong views about what these measures do for the powers of local health overview and scrutiny committees, because they already have the power to refer to the Secretary of State should they need that to happen. The powers that are currently in place are a really effective way of doing it. People getting something past a local health overview and scrutiny committee is a really important hurdle for any service change. It is already well respected, well used and very effective. This is one of those elements that at best is redundant and at worst is going to create a lot of work and a lot of unnecessary tension and friction where we already have challenge.
Edward Argar
Q
Saffron Cordery: As we see a change in the system, obviously the nature of how we have procured services in the past does have to change. It is obviously a complex area, but one of the things that we really need to look at is the effectiveness of the current contracting regime, which for certain parts of the provider sector in particular is incredibly burdensome. If you sit in a mental health or a community trust, you are subject to a whole host of retendering, which can have a potentially far-reaching impact on your trust’s sustainability or the future operation of key services. For many bits of the system, that will be very important.
The procurement regime is fundamental. It underpins how this will operate. We need to make sure that the elements of fairness are upheld and that it does not disproportionately put a burden on any one part of the system in particular.
Edward Argar
Matthew?
Matthew Taylor: I agree with that. It is important to remember that one of the goals of the Bill is to reduce the weight of bureaucracy in the system. If we can reduce the weight of bureaucracy as it applies to procurement, that is only a good thing.
Edward Argar
Q
Matthew Taylor: Of course, one of the most challenging questions in all parts of central Government is to get that balance right. The one point that I want to make is about the nature of system leadership. If you lead an organisation—I lead an organisation—the parameters of what you do are reasonably well defined and you lead that organisation as best you can, and you can be regulated as an organisation in relation to its objectives. The thing about system leadership is that it involves developing a concrete and specific account of how you want to add value in a particular local circumstance—how is it that, working as a system, you will make a difference?
By looking towards population health and engaging local people, that proposition will vary from place to place. It is important that, when we look at how systems work, we allow them to develop a value proposition that is specific to their local circumstances and their local needs. That is why, for example, we would be very resistant to any kind of Ofsted inspection regime for systems, because systems are not the same as hospitals or as schools; they are very different and their aspirations will be very different.
When you look at the Bill, the reality of central-local relations is that rules are set out in legislation, but then there is the custom and practice of how Departments and other bodies actually work. Sadly and inevitably, the drift of custom and practice tends to be towards centralisation. That is why it is important to avoid things in the Bill that create an opening—this is why we can have our concerns about reconfiguration—which can get ever wider and thus undermine the key principles that lie at the heart of the Bill. So we are happy with the intentions of the Bill, but we are worried that there are certain elements of it and certain elements that might be involved in the operationalising of it that could undermine its intentions.
Edward Argar
Thank you. Saffron?
Saffron Cordery: I go back to a point that I made earlier in this session, which is that this balance between permissiveness and prescriptiveness is critical. The August 2019 agreement, when all the stakeholders came together to look at how we might legislate for an integrated care system that got that balance right, I think is there. You have to remember that what sits around a set of proposals will have a massive impact on it, so the Secretary of State’s powers as we have seen them, and the operating environment overall, will have an impact on how these proposals will be implemented, and how effectively they will be implemented.
We cannot forget covid in this. We cannot forget the extreme financial pressures that we are seeing. We cannot forget demand. We cannot forget an incredibly tired workforce. That is not going to change any time soon; that is going to be for the next few years, so we are implementing something against that backdrop. But if we go back to the slightly lighter touch of the August 2019 proposals, we will probably get to a place that would hit the spot, as it were. I reiterate that we support collaboration in systems and the direction of travel.
The Chair
Given the time, we will leave it there. I thank our witnesses, Saffron Cordery and Matthew Taylor.
Examination of Witnesses
Ian Trenholm and Keith Conradi gave evidence.
The Chair
We will now hear from Ian Trenholm, the chief executive of the Care Quality Commission, and Keith Conradi, the chief investigator at the Healthcare Safety Investigation Branch, both of whom are appearing in person. We have until 4 o’clock for this session. May I ask you both to introduce yourselves for the record?
Ian Trenholm: Good afternoon. My name is Ian Trenholm and I am the chief executive of the Care Quality Commission.
Keith Conradi: I am Keith Conradi, the chief investigator for the Healthcare Safety Investigation Branch.
Jo Gideon (Stoke-on-Trent Central) (Con)
Q
Ian Trenholm: The Bill will add value to patients in a number of different ways. There are four areas that we have particular interest in. The first is around the work we expect the Government to ask us to do on oversight of the individual ICSs. Building on the comments that have just been made, our contributing to the assurance around ICSs will be an important part of how we can add value. We will do that by drawing to the attention of local communities both the good work that is going on in a particular place, and areas where there are some challenges. We will also be able to look across the country, demonstrate where things are going well and help with improvement, as we do with the regulation of individual providers.
The Bill also contains a provision for us to provide assurance regarding the way local authorities discharge their Care Act 2014 duties. Again, that gives local people the certainty that local authorities are discharging their responsibilities. If you bring those two things together and connect local authority duties around the Care Act and social care with what is going on in healthcare, you get a whole-system view, and we are able to give an independent overview of that, which we report to Parliament and the public.
There is also a provision in the Bill relating to food standards in hospital. It is well known that people’s recovery is aided by good-quality hydration and nutrition that is appropriate for the social and cultural needs of that particular place. As part of our work, we will be asked to look at that.
Finally, building on the comments Mr Madden made a couple of witnesses ago, the miscellaneous provisions within the Bill on data sharing and the requirement to co-operate are also powerful and enable us to do our job as an intelligence-driven regulator. From the point of view of reducing bureaucracy, they mean that we collect data once and then we can share it among the many partners involved in regulating different parts of the health and care system. Those are four particular points where I think the public would see value in the work we do.
Keith Conradi: From our perspective at the Healthcare Safety Investigation Branch, we welcome the introduction of this part of the legislation. We have been working in shadow form for the past five years, without any real powers, and the things we have missed there are likely to be introduced in the Bill, such as power of entry, so that we can access people quickly in an investigation. Any investigator will tell you that the quality of the investigation evidence, particularly interviews, degrades quickly over time, so the ability to go in quickly is hugely important. Also, not being able to access data that we know people hold has been quite frustrating in our current guise. We have sometimes had to wait for months and months for data in order to be able to complete an investigation.
The other thing that we are particularly keen on is being able to properly protect information that people give us in a protected environment, so that we can ask them to be as candid as possible with their experiences. We want to be able to protect that information from being released more publicly.
The Chair
I am not being flooded with a whole array of hands, so why not? On you go. I will come to you in a second, Edward.
Jo Gideon
Q
Ian Trenholm: We will be inspecting against the hospital food standards—is that what you mean? We are not going to be setting individual nutritional standards; we will be inspecting against the NHS’s food standards. We are going to deliberately make sure that our work does not overlap with organisations such as the Food Standards Agency, for example. To be very specific about it, we are not going to be inspecting vending machines or taste-testing food in canteens. What we are going to be doing is looking at the hydration and nutrition strategies that, say, a board in a hospital has set for its particular area. As we go around the hospital, we will be looking at whether that strategy is being enacted for the cultural and social needs, in particular, of the people in that hospital. Does that answer the question?
The Chair
Do you have anything to add to that, Mr Conradi?
Keith Conradi: I think that is outside the HSIB’s experience.
Edward Timpson
Q
Keith Conradi: Having come from the air accident investigation branch as my background, the whole idea of these investigations is that we do not apportion any blame or liability, and that we are really looking at why an event took place when somebody came into work planning to do a good job, and what the circumstances around the environment were that allowed a tragedy to occur. We use a lot of investigation science methodology to ask those why questions, really looking at systems-type thinking, so we do not mention anybody’s names in the reports. We do not, at the moment, mention where the actual occurrence took place, because in our view that is almost irrelevant. It is the system that we are trying to change, and the safety recommendations that we make are, by and large, to the national bodies—often the regulators—because we think they are best placed to make the changes that we think are necessary.
Mary Robinson (Cheadle) (Con)
Q
Could I also ask about the regulatory role? With regard to whistleblowers who raise these issues—we are talking about safety and the best interests of patients here—will this enhance the powers and abilities that you have, or is more needed still.
Keith Conradi: One of the clauses actually will require people to speak to us, so there is a compulsion on people to provide evidence. In a way, that might help some people who are undecided about what they should be doing. But to balance that, it is very important to be able to protect the evidence that is given, and there are protections within the clauses. I think they could be improved. But the whole idea is that we create this space, where really the only safety valve is the High Court, and I believe that is appropriate as the only place where that information can actually be released.
I think it is worth saying, however, that when people talk to us and use this sort of safe space, the whole idea is that it is not a place where they are going to unload stuff that will never see the light of day again; we use that information, either in our final reports or to help us further the investigation. It is just that it is non-attributable, so we do not mention people’s names. The idea is that we use it to further patient safety.
My concern about the way the Bill is currently written is that there is a provision for coroners—some coroners—to be able to see this information. I think that will inhibit some people from speaking to us—and the whole point is that people are uninhibited from doing so. Having that potential release of information into that sphere will, I think, degrade the ability of the investigation to do its job.
Ian Trenholm: Building on what Keith has just said, I think we would see the Bill as giving an opportunity to create a safe space. It creates an opportunity for people to talk about things that they may not otherwise have wished to talk about. What Keith’s team can then do is look at that information. We need to make sure that we have the right data-sharing protocols in place. Keith’s team can then talk to my team about what is happening on the ground. They can do whatever anonymisation is necessary. So we might get to hear about things that we perhaps would not otherwise get to hear about.
That is a real positive at provider level, but if you click up a level, you quite often find that, from a safety and quality point of view, people’s poor experiences are driven as much by their experience of it as a system and the way they transit between different providers as it is about the experience in an individual provider. So if you have a person who perhaps is working between providers or in some kind of community provision, they will see multiple providers and they will become, if you like, better whistleblowers. Our work on systems and our assurance on systems will help as well, I think. Of course, Keith’s team make recommendations to us as a regulator, in the way they do to other people. So I think this is generally a move in the right direction.
Karin Smyth
Q
Keith Conradi: We currently have a maternity programme that investigates about 1,000 cases a year, based on quite specific criteria. At the moment, the Department is deciding what it wants to do with that programme—where its future lies. As far as we know, it will stay with us, certainly until the HSSIB—the health service safety investigations body—starts, but I think a decision has yet to be made on whether it will actually just fall into the work that the HSSIB does, or whether it will do something separately with it, so I am not aware of that at the moment.
On the second point, I am aware that the ombudsman would like the same power to access the statements that we take under safe space. I think that is a major concern. Over the last five years, the ombudsman has been able to investigate any complaint brought against us in our current guise. It has not seen fit to do so, so I would suggest that on the rare occasion that might be necessary, the provision for the High Court to carry out the balancing test and decide whether to disclose information or not is the appropriate way ahead.
Dr Davies
Q
Ian Trenholm: Can we not call it a CQC-style rating? There are two separate things. The Bill currently contains an explicit provision about providing assurance on how a local authority is discharging its responsibilities in relation to the Care Act. That is important because the way in which care is commissioned is as important for outcomes as the way in which it is delivered. That is one part and that is a discrete piece of work. There is a broader piece of work that we are expecting Government to ask us to bring forward on assurance on ICSs. It will look at the ICS partnership board, how that works, the ICS strategy and so forth. They are two complementary pieces of work, but they are separate, as you describe.
Dr Whitford
Q
Keith Conradi: I totally agree with you. I think it will have a major impact on people’s wish to speak to us. It is not just me that thinks that; the medical unions have said that their members are concerned. The whole idea is that you want people to talk about, as you say, the “soft” things. They tend to be things like the culture of an organisation and the pressures that are brought upon them to do various pieces of work. In the past that has been a bit of an Achilles heel in terms of safety in the NHS. People have often been blamed for these things. They have been disciplined for speaking out—we talked about whistleblowers earlier.
Anything that we can do to bring that information up to an investigation body, which is not about blame and liability, is going to help patient safety in the long run. They will find their way into our final reports—that is the whole idea of getting this information. We want to encourage that as much as possible. I do not think this helps. I think a previous Joint Committee looked at a similar piece of legislation, and that came to exactly the same conclusion. As you say, what is the problem with other bodies such as coroners conducting their own interviews to get the same piece of information or any information they require?
Dr Whitford
Q
Keith Conradi: Yes. In a way, the powers are so sweeping that they go well beyond what we think we would need, and well beyond what is used in other sectors—the transport sectors. We know that parallel investigations will take place into many of the things that we look at, and that is fine. The problem is that if we have these sweeping powers, which pretty much say that anything we touch or come across we then have to protect, and that we can then unwind and release some of them with a fairly bureaucratic process, that will be difficult in terms of transparency and our ability to share the information with others who have a legitimate need. The key things that we absolutely want to protect are statements given to us by witnesses and any draft notes, opinions and reports that we generate from doing the investigation. It is the final report that is our piece of work that we want to produce at the end of the day, and that is it.
Dr Whitford
Thank you. In the interests of time, I am happy with that.
Ian Trenholm: If I could make just one point, I think you are absolutely right: the broader responsibilities of an individual provider, particularly around such things as duty of candour, would still stand. Therefore, at an institutional level, people will still need to do the things that they always needed to do, but there is a very specific set of circumstances that Keith was describing where safe space may apply.
Justin Madders
Q
Ian Trenholm: I do not think that there is at an individual provider level. What you have just described is our normal registration regulation process at an individual provider level. As we start to look across individual places and ICSs, we might be able to talk to individual partnership boards about people who are operating locally, but I do not think the Bill explicitly gives us more powers to look at individual providers in any more detail than we already would as part of our normal registration process.
Justin Madders
Q
Ian Trenholm: Not yet. Obviously, as the Bill goes through Parliament the breadth and size of what we will be asked to do will become clear. We are talking to a range of different stakeholders at the moment. The NHS Confederation and NHS Providers are on our list, as are the Local Government Association, the Association of Directors of Adult Social Services and, of course, various representative groups that represent people who use services, so we are having those conversations now around what they would expect from good-quality assurance at a system level—but no, we have not really got to the point of assessing this in any detail.
Justin Madders
Q
Keith Conradi: We see ourselves as very much an independent and impartial investigation body that can sit outside the system and look into it. We would not want to have any barriers really on where we might look to see where patient safety could be improved. As I mentioned earlier, we tend not to dwell on the incident at the trust level, but try to work our way up through the system. Ultimately, we end up making recommendations to the Department of Health and Social Care, and in the future I would like to ensure that we have that complete freedom to be able to make recommendations wherever we think that they most fit. That independence of the system is crucial for the success and the credibility of the organisation.
Justin Madders
Q
Keith Conradi: At the moment, they are monitored fairly informally. There is a part of NHSEI—a patient safety team—that looks at whether the actions that were promised in the response to the safety recommendation have actually been carried out. We believe that that might sit more appropriately with this body in the future—NHSEI receive a rather large number of our safety recommendations, so I do not know whether they are the right body to monitor the actions that are taking place, whereas I think that could sit with us. It is important that that is just monitoring the actions, not judging the outcome, and I think that there needs to be a separate, probably pan-regulation-type body that looks at whether the outcome at the end of the day mitigated the patient safety risk that we first went out to investigate.
Justin Madders
Q
Keith Conradi: Informally, we have a good working relationship, so we are interested. We get the response to the safety recommendation and we internally look at that and consider whether we are happy with it. If we are not, we would send out letters to say that we would like further information. We want to put this on a more formal footing to see that in the future.
Edward Argar
Q
You will have heard in the evidence just before, Mr Trenholm, the comments by Matthew Taylor about the difference between assessing a system versus a provision. How do you see how the CQC would square that circle, because he highlighted the very different approaches and his reservations about some of that? How do you see that issue being resolved, or what would you like to see in that space?
Ian Trenholm: If I compare one large hospital with another large hospital as a comparison in terms of what we do now, one would argue that they are quite different enterprises, differently run and serving different communities. There are some common themes, but equally there are some differences. We built a methodology that was able to be applied to both of those very separate entities and to provide a common rating at the end of it.
I would see a version of that at a system level: there would be things that we would want to see that would be common and necessary— decent quality governance, for example—as well as a lot of things that many of you were raising as questions and concerns. But equally we want to see some evidence that the partnership board was cognisant of its local community and it was genuinely delivering a suite of services that its local community genuinely wanted and that was consistent with the needs of that community.
Over the next 18 months or so, we will be building our methodology in collaboration with the people who are also building the ICS boards and frameworks. I am hopeful that we can get to a point where we have a methodology that gives you, as parliamentarians, and local people the assurance that things are working well locally. However, it is not just about what is not working, but about looking for really good practice and looking to accelerate that. Previous people have made the point that doing things differently often leads to good practice and innovation, so how can we help accelerate that innovation through the work that we do. That is broadly how I see it working.
Edward Argar
Q
Keith Conradi: Absolutely.
Edward Argar
Q
Keith Conradi: I certainly think so. My previous experience in aviation is that we had a similar space, and only the High Court could overturn or order disclosure. It was used on a handful of occasions, and it produced very interesting debate. The balancing test—testing whether the benefits of the disclosure outweighed the adverse reaction that there might be to future investigations—was well argued in each of the cases. I think that is the appropriate place to do it.
Edward Argar
Q
Ian Trenholm: We do work at the moment in terms of registering and regulating individual providers, and we do that right across the country, so we have a picture of health and social care right across England. Part of the Bill will give us enhanced powers looking at the way in which individual systems and individual ICSs work. Our view is, if you like, a broad and moderately shallow view, whereas I think Keith’s team do more in the way of specific investigations. I am sure Keith can talk to that.
Keith Conradi: I would characterise the relationship as a healthy tension. We make very few recommendations to the CQC, but the vast majority of recommendations we make will, we hope, have an impact on the work that is going on across the system. The ideal people to have a look and see whether that is having an effect will be the CQC, from time to time, as it comes across things that have changed as a result of what we have done. I think the relationship works very well, in that respect.
Mary Robinson
Q
Keith Conradi: I would probably need a lawyer to give you the proper answer, but I do not think any of this would trump anything else. We would still need to acquiesce and accept those disclosures as they happened, so I do not think that would be an issue for us.
The Chair
Anyone else? It does not look like it. I thank both our witnesses for their evidence.
Examination of Witnesses
Councillor James Jamieson and Professor Maggie Rae gave evidence.
The Chair
We now move on to our sixth panel of witnesses. We will hear from Councillor James Jamieson, chair of the Local Government Association and Professor Maggie Rae, president of the Faculty of Public Health, both of whom are joining us remotely. Could both witnesses introduce themselves for the record, please?
Professor Maggie Rae: Good afternoon. It is a great pleasure to be able to join you today. My name is Maggie Rae and I am currently president of the Faculty of Public Health.
Cllr James Jamieson: It is a great pleasure to be with you today. Thank you very much for inviting me. I am James Jamieson and I am chairman of the Local Government Association. Until January, I was leader of Central Bedfordshire for nearly 10 years.
Dr James Davies
Q
Cllr James Jamieson: Certainly, we are very pleased that we have repealed some of the legislation, which basically made people focus on targets rather than what is best for the patient. Focusing on discharge to assess at hospital led to some at times frankly perverse incentives just to get people out, often into care homes, when the right solution was to assess after they had left hospital, in their normal setting, not in the setting where they were in maximum need. That change has given much better solutions and outcomes for our residents, which is what we want.
Dr Davies
Q
Professor Maggie Rae: Obviously, from my position as president of faculty, I want more emphasis on prevention, so I am very pleased to see that focus on it, but I do not think it is quite enough yet. I think we would all recognise that part of the reason why we seemed to take the biggest hit on covid in terms of deaths and the effects of the virus was the ill health of our population. We are recognised as having one of the most unhealthy populations in Europe now, and that was not always the case. Yes, it is very pleasing to see the measures on obesity, but we need to recognise that most of the influence could come from the very local level.
I am sorry to say to colleagues and this eminent Committee that we could probably spend the whole meeting talking about fluoridation. I recognise the attempt to tackle the problems of oral health. Children’s teeth being extracted under general anaesthetic is a national disgrace; that money is so wasted in the NHS when we desperately need it to be spent on other health matters, and the time it takes for that operation is so dangerous for children. It is good to have this recognised, but I think it will be quite a slow burn, even with the legislation.
Some areas have tried to implement fluoridation. It has taken them years and they still have not succeeded. Could we perhaps persuade people? As well as focusing on fluoridation, could we have just a small investment in other methods to tackle oral health? One that is really effective, which I used myself as DPH, is simple toothbrushes and toothpaste. Sometimes we think public health measures take a long time, but I can guarantee that if that measure were implemented effectively you could see the changes within 12 months and would also end up saving the NHS a lot of money. I work closely with Councillor Jamieson in his role at the LGA and I hope that he would agree with me.
Cllr James Jamieson: I am going to agree with Maggie. I think that that is a general point we would make. Better healthcare does not start in a hospital; it starts in the community and it starts before you are born. It is about prevention, early intervention, public health, good food and all those things. We welcome measures to support that.
On the point about obesity, I would particularly say that although, yes, it is nice to be able to produce advertising, there is so much more we would like to do. This is not necessarily within the scope of the Bill, so I am not suggesting that, but, for instance, in licensing legislation, being able to take account of public health, which at the moment is specifically excluded, as well as being able to do so in planning legislation as regards where fast food places are and so forth, would be immensely helpful. This is a start; it is a small but positive step.
Mary Kelly Foy (City of Durham) (Lab)
Q
Even more remarkable as regards reducing health inequalities is the absence of any detail, duty or provision to tackle alcohol harm and tobacco control, which of course are the greatest factor in determining a person’s life expectancy—and further down the line they have the greatest impact on local authorities’ social care bills. Do you think they should be included in more detail in the Bill, with a duty to reduce health inequalities rather than just having “regard” to reducing them?
Cllr James Jamieson: I think we need to be cognisant of the fact that this is a Bill providing a framework. I completely agree with the comments made about health inequalities, good housing, green space and all those things—absolutely. I am a full advocate of the idea that health is three quarters determined by somebody’s environment and choices, and probably only a quarter by what the NHS does. That is really important. My slight concern is that if we get very prescriptive in legislation, it limits the ability to do the right thing.
The really important thing about this legislation is all the guidance and so forth that will come out of it, and where the funding goes. Our preference is to say, “Try not be too prescriptive in the legislation, but really engage with local government and public health on the guidance that comes out of this legislation.” A real priority has to be better places, better communities, better jobs, less pollution and all those things, but I do not think that that is something for legislation; I think it is very much about getting the guidelines right, and they will be different in different parts of the country. The issues that might be faced in a rural area are very different from those faced in an urban area. I do worry that if legislation is too prescriptive, it hampers rather than helps.
Professor Maggie Rae: Would you mind if I added some comments please, Chair?
The Chair
Please do.
Professor Maggie Rae: Just building on those comments from Councillor Jamieson on what I think is a very important question, there is a line in the Bill saying that the ICSs have to take note of advice from directors of public health. If we want ICSs to be population health organisations, we have to make sure that the legislation is strong enough to ensure that the advice is acted on. Our directors of public health have been highly trained and are able professionally to identify the needs of the population, identify where the health inequalities are and make sure that they can provide the ICSs, in terms of both the NHS-side board and the partnership board, with all the evidence they need about what will make a difference. It is the action that will make a difference and improve those outcomes that we all want. It would be very helpful to ensure that the Bill, if possible, is more explicit about that advice and which source it is coming from. We have worked very closely with the legislative team and the Bill team. I do not think anyone could fault the amount of hours they have spent discussing with stakeholders the details of the Bill, and Councillor Jamieson is also right that we cannot have everything in the Bill, but we want a true population-focused organisation.
That has to be the change that this legislation brings; it has to be an enabling legislative framework. We then need to ensure that the guidance, and, most importantly, the assurance process, allow some of the public health expertise to determine whether it is fit for purpose. It is possible that these organisations, and the excitement of the changes, could result in our having a more place-based population focus, but that will only be the case if we get it right and take account of those wider determinants such as education and housing—all the things that contribute to good health.
Edward Timpson
Q
Cllr James Jamieson: Looking at the current situation with health and wellbeing boards and so forth, that has worked well in some places and not so well in others. That is largely down to local factors, relationships and the willingness of the NHS to participate in a place-based approach. Our hope and expectation is that this formalises it, not in absolute terms, but in emphasising the role of local government and other partners that the NHS has to take account of. In essence, it is strengthening our ability to influence the NHS.
Why is that so important? I come back to the comment that I made earlier about how much health outcomes for an individual are based on non-NHS factors. I have forgotten who raised the question of health inequalities, environment and so forth, but those are all place-based factors. Getting more investment in public health, less pollution, better community health care, a better GP service and better occupational therapists will make huge differences to people.
At the end of the day, nobody wants to go to a hospital; they would far rather be healthy and not need to. Therefore, empowering local councils and partners to have a greater say in how we improve the health outcomes of our whole population has to be a good thing.
Professor Maggie Rae: To add to what Councillor Jamieson has said—he is making some excellent points on that agenda—it is important to get the balance right. In England, we had the legislation on health and wellbeing boards. One of the principles should be not to ride roughshod over legislation we already have just because we like the new bright and shiny legislation. On the commitment to stakeholder engagement, we managed to get the Bill team to understand that we have legislation already.
Some of that legislation is still there—we still have directors of public health and the powers in local government—and those things are important, but we also know that if we do not get this legislation right, we will not be able to get right the ambitions on health inequalities and on improving health either. The detail of this is really important. As I think was indicated in what Councillor Jamieson was saying, we know that legislation alone does not always fix problems. I do not know how we can get good relationships just through legislation. We can enable things to happen, but we need to ensure that the legislation is enabling and that there is some holding to account for the standards that the legislation is trying to set.
We cannot afford for the health of our populations to be affected by unhelpful variations. I am very supportive of place-based—action happens at the local level and it can be effective at the local level. We need good national legislation, but if we want to do justice to the population in this country, we cannot have unhelpful variation, because that is what will undermine this legislation. We have to make sure that everyone is working for the same aims and that at the heart of everything is the commitment to reducing health inequalities and improving health outcomes, regardless of where you are. Whatever your own organisation, whether a hospital, a local authority or a mental health trust, we have to have something that overrides loyalty to the organisation—to put the population first.
Karin Smyth
Q
My point to Councillor Jamieson, which I made to earlier witnesses, is about the integrated care boards, which are the decision-making and accountability bodies locally—the ICPs are essentially a committee of these boards. The accountability, responsibility and decision making lie very clearly with the integrated care boards, which are essentially, as I have called them, a cartel of local healthcare providers—largely the acute sector trusts, which are responsible for vast sums of money. Councillor Jamieson, you have gone to the effort of putting your name on a ballot paper and persuading local people to put their cross by your name. Should you fall foul of them, or make decisions that they do not agree with, you will soon no longer be Councillor Jamieson. That is very clear accountability. With that hat on, can you talk us through your understanding of the role of local government status wise—beyond “Let’s all work together in partnership”—when we reach that real decision-making, push-comes-to-shove crunch about where accountability to local people could lie for decisions if we improve this Bill?
Cllr James Jamieson: In the ideal world, one would probably like one board. However, that would mean that all members of that board had equal status and so forth. Obviously, the NHS partnership would have budgetary responsibility for hospitals, and there is a technical issue with, “Can you have a bunch of non-NHS people having budgetary responsibilities for the NHS?” We understood the difficulty, and that is why there is the need for two boards. The clear point here is that this legislation provides us with a framework that enables that to have real traction.
But I come back to my earlier point, which is that this is a framework; this is not a solution in itself. Legislation does not solve all the problems. This is about how budgets are managed; it is about all the guidelines and regulations that come out. One of the big requests that we have as local government—I am sure Maggie will have it as well—is that we are deeply involved in those guidelines to make sure that they work. I have to say that, so far, we have been, but many more bits of guidelines will come out. That is the crucial bit.
There are some changes we would like to the legislation, but they are not that great—I will come to them later, because they do not refer to this point. We want statutory and non-statutory guidance around things such as the implementation of the Bill, a comprehensive list of guidance that will be issued and clarity about the flexibility. We want some statutory guidance on health and wellbeing boards to ensure that they are at the heart of this. So there is a lot going on, and I am pleased to say that we have been involved in some of the guidance that has already been issued, such as “Thriving places”. As Professor Rae said earlier, engagement has been very good so far, and we would like that to continue, because this is our chance to get this right. We will do that through getting the statutory and non-statutory guidance correct and making some changes, no doubt, to the Bill. But I do not think that this Bill can accomplish everything, so the LGA would certainly not be in favour of significant change to the Bill.
The Chair
Actually, in view of the time, I am going to ask you not to, Karin. I am sorry, but if we are going to hear from Professor Rae and give Chris Skidmore a chance, we had better just move on.
Professor Maggie Rae: Again, it is good that you have asked for some specifics and related this to governance, because it is very important that we understand how the legislation will be implemented and that the governance is right.
The concerns that members of the faculty would have are quite broad based. While people might be genuinely pleased that we are moving away from a market economy on health, some are very concerned about opening the door to further privatisation. I want to give you some detail on specific public issues on which you said you would like more information. The legislation includes some public health hooks that will make it easier for us to ensure that we have good public health, but I question whether they are explicit enough.
The issue of taking advice on the needs of your population is a fundamental skill of public health. Whether nationally, regionally or locally, the professional job of directors of public health is to assess the needs of the population and provide organisations with the evidence about what will make the biggest difference—cost-effectively, of course. The idea of “taking advice” is a little vague, but strengthening the need for that advice to come from the statutorily appointed directors of public health—the regional directors of public health have been trained to do that and put the needs of population first—might give some strength to the Bill.
In my day job I do a lot of ICS development for the organisation I work for so I have experience of working with ICSs, and many current ICS leaders—I know there has to be an appointment process—are passionate about health inequalities and public health. We have to make sure, as we said earlier, that we have something substantive that guarantees that public health is not down to individuals and personalities, and that we have a framework. We cannot expect Cornwall to be the same as Newcastle, but we cannot have the population suffering from unwarranted variation. If I had a bit more confidence that the role of directors of public health—and the regional directors of public health—would be instrumental in the legislation, the guidance and the assurance process, I would be able to give you more guarantees that things will be better in the future. At the moment, it is a little vague.
Chris Skidmore
Q
Professor Maggie Rae: Again, that is an excellent question. I strive for excellence in our country in relation to all matters covered by the Bill. It is with great sadness that I see that health outcomes have plummeted since the start of my career. Early in my career we had the best health outcomes for cancer in the whole of Europe. I am sorry to say that that is not the case now, and ensuring that the scientific underpinning of this is seen as essential will make us more leading edge.
There are many examples in the covid pandemic in which we have been leading the world, and that is certainly true of the vaccination programme. I heard in a meeting this morning about some amazing research that is just about to start.
There are lots of areas of cancer where we have not progressed in the last five years. I could name the different cancers; we do not have time to go into them. If this research was going to test people’s blood early to get earlier diagnosis, as Councillor Jamieson said, it does not all have to be high-tech, high-cost NHS services. Lots of interventions are low cost. You will not find anything more cost-effective than getting people to give up smoking. That is a classic low-cost intervention. We want our country to be leading, and we want to put everything behind these new organisations and ensure that there is that scientific underpinning and that we do not fall behind other countries. I tend to side with your view that we may need to strengthen that.
The problem with this sort of legislation is that you want to be very enabling, but then you are very dependent on what the biggest problem is in the NHS today. Many of these organisations are trying to balance the books. We have tried to say that it is not all about targets. We can hit the targets and miss the point. The thing is, we are not hitting the targets at the moment either. Thank you for speaking up about the scientific underpinning. I would like us to remain where we are, and do better on science.
Dr Whitford
Q
Professor Maggie Rae: That is right at the heart of health inequalities. If we did not know that before covid, we certainly know it now. An area where we could strengthen the legislation is in having that responsibility for all the people in your population. I led on health inequalities in the only time we have narrowed the gap, so health inequalities are not something that are just there and that we cannot do anything about except talk and say how sympathetic we are to them. We can deliver these changes. If we get the legislation and the organisational functionality, we will not change this unless we engage with communities. That is absolutely right, and we must engage with the local authorities.
Unless we target every intervention that we apply to the most disadvantaged and ensure that they have a good opportunity for uptake, we are widening health inequalities. I could take you to any health intervention, whether it is the covid vaccine, the flu vaccine, any uptake on health programmes or cancer screenings. They are all skewed to the most affluent population. In our country we want general population services, because we need everyone to be healthier, but we have to try to ensure that these organisations understand population need and know where the deprived populations are.
I have never met an MP or councillor who did not know where their deprived populations were, so we need those organisations to know that, but just knowing it is not enough. You have to then see the pattern of services and service delivery change to give a better chance to the people who need to take up these services. We have all understood that it is not that those people are hard to reach; it is just that we do not run the services to suit them and get a better uptake. I would like to see us concentrate on that. We probably cannot mention every single intervention, but for me it would not be enough to concentrate on obesity and fluoridation and think that the job is done on health. We have higher drug deaths than the rest of Europe—Scotland, as you know, is probably one of the worst in the world, if not the worst—and alcohol and all the other issues there, but I believe we can make a difference, and it will not take us 25 years if we focus on the right things, having the right interventions and making them readily available for people, and have a nice balance with what the NHS can do.
The NHS is the greatest service in the world and it can really help with health inequalities, but it cannot do it all. I am not an either/or person; we need the wider determinants and everything we can do that is place based through the local authorities, but we need the NHS to do that too.
Dr Whitford
Q
Cllr James Jamieson: This is where the legislation is helpful, because it is enabling. The more we can move away from the NHS pound, the local government pound, the health pound or the DEFRA pound, and towards, “This is the pound for Newcastle or Cornwall; how can we achieve the best outcome for it?”, the better. I know that is difficult and, as you say, things such as housing, getting someone into a job or promoting active travel can make a massive difference to people’s health. They can make big differences, and having that forum and the opportunity to have those discussions is very helpful. A forum where we can start moving from investment in, as you rightly say, curing someone to preventing them from getting ill or, as Maggie said earlier, getting early cancer diagnoses is critical.
This Bill does provide a framework, but the important stuff will be the statutory and non-statutory guidelines and where the money is spent. That is very important, and we hope to see more spending on preventing and less on fixing a problem that need not happen.
Alex Norris
Q
“appointed by NHS England, with the approval of the Secretary of State”.
Under paragraph 5, only NHS England can remove a chair if they are unpopular and not doing the job, and there is nothing that you can write into your local decision making to get around that. Are you comfortable with not having any say over your chair when they are appointed or whether they carry on in the job?
Cllr James Jamieson: Clearly, there are two chairs in this scenario, and one of them, as you say, is NHS appointed in effect and the other one could be anybody—it could be a councillor, a local government representative, or a local director of public health. There is a role. I think this is a difficult area, but that is the reality, because ultimately that chairman will be the person who is financially responsible for the NHS trusts in his or her area. I have some sympathy with it; if I could find a better solution, I would seek to find one.
Alex Norris
Q
Professor Maggie Rae: I am still a fan of the fact that you need public health and local government. I started my career there and moved to the NHS; I moved back to local government; and now I am moving back to the NHS. What we need is flexibility, so professional groups can work there. I would highly recommend all my public health colleagues and public health registrars to get experience nationally, regionally and locally. That makes you a much better, capable public health practitioner. However, you cannot deny that you can do the same for half the money.
I know that when the announcement was made about public health moving into local government, I did do the rounds saying that it would be a really good thing. I have to say that some very experienced people from councils were saying to me, “Well, I know what will happen. We will get the responsibility, and then they will take the money from us.” I said, “No, no, that won’t happen because public health has always been ring-fenced.” When we were in the NHS, the public health funding was ring-fenced. I have to confess that I was naive, wasn’t I, because actually the grant was cut. I do believe that every pound you spend at the local level in that local government setting you will get back tenfold because of all the social capital you can get from it. That is the reality. If your plans are ambitious, you do not need a lot of money. Lots of the interventions on obesity, smoking and all the other things do not take a huge cost in comparison with some of the high-tech NHS ones. If you have the ambition, you need to follow it through with the necessary resources to do it.
I have been public in saying—I am probably with Councillor Jamieson—that in the ideal world, and I have been a director of adult social care, as well as a director of public health, we are not in camps with our bags of cash. We actually put all of our money together for the resources of the population. I would like to see the ICSs mandated to spend so much on prevention and health inequalities wherever the money comes from, because if we continue with what we are doing at the moment—waiting too long to intervene—none of us will be able to afford the mountain of the problem that you will build up. There is no money available in the world to do that.
There have been some early positive signs that we mean business this time with prevention and health inequalities, but we have to deliver. Having just looked at the social care paper today, I struggle to find prevention. I know from being a director of adult social care that if we do not intervene early and get people to be ageing well and healthy, we will not have the carers in the world who can look after them. Again, I make the plea for the resources. It does not take a lot—I am not asking for billions—but a small amount of resource could make a huge difference. If we continue to cut the public health grant, well, we will continue to have poor health, I think.
Alex Norris
Q
Professor Maggie Rae: My experience is that there are some things you can legislate for—seatbelts would be the classic example, or smoke-free places—that work really well, but for most things, if you really want to get action, you need to take the public with you. Certainly, if you fluoridate the water, you will have some very direct oral health benefits. Dental decay, for example, is a classic. However, you probably will not fix every little problem you have got, because it takes more than just fluoridation. Most people’s teeth fall out because of gum disease, so you have to have a wider educational programme with the public.
I also know from my work as the director of public health at the local level and my early days work in Scotland that I could take you to lots of families where they do not drink water, so it is not that obvious to me that that is just going to fix the problem as easily as we think it will. I think you need an all-encompassing programme. While we wait for any implementation of the fluoridation, today children will be having their teeth taken out—children of four or five. That is unacceptable because, alongside that, we should be ensuring that there are the educational programmes and the supply if people cannot afford toothbrushes and toothpaste. That would be a nice easy fix for something to do.
We obviously have a huge population who have already lost their teeth, and one of the biggest problems of the elderly is pure nutrition because they simply cannot eat. It is a problem that sometimes you think legislation will fix it top-down, but I think in everything you do it is much better to see public health people as being responsible to the population. In my experience, you really have to take the population with you to have any chance of implementation, whether you have legislation from the Secretary of State or not.
Edward Argar
Q
Back in the day, I served as a councillor and cabinet member for public health, adult social care and health, and worked very closely with my then local PCT, which probably shows you my vintage. One of the things that I found was that the structures were important, but the relationships and how it worked on the ground, and the ability to be flexible and build up the trust between the two organisations was more effective in getting better outcomes. We have heard from previous witnesses about the importance of local flexibility to adapt to local work arrangements and conditions. Do you think we are striking the right balance between being permissive in allowing that flexibility and not being too prescriptive, or do we need to go a little more in a different direction?
Professor Maggie Rae: In my experience, with the way that the ICS has been set up, we very much hope that we will not start from scratch again, because those organisations have been working on this agenda for quite some time. I think there would be cries of horror if we said, “We are going to throw out the work you’ve already done.” Many of them have been on this journey for a while, and the leaders in those systems have indeed made some good progress. I think it is a delicate balance.
I will not repeat the points I have already made about strengthening the links to public health and making sure that is not forgotten. We will have 600 public health people going back into the NHS, but we very specifically have not changed the legislation that put directors of public health in England into local government. Of course, directors of public health in the three devolved nations are currently in the NHS. If you do not give people flexibility, you run the risk of your system not working. If we ensure that the framework and assurance process are right, the legislation takes us part of the way, but we want some checks and balances in relation to those freedoms, to make sure that there is a basic minimum standard across the country. If you have an ICS that is not working with its local authority, that is not a level where the ICS should be signed off. The ICS should be asked to go and demonstrate the commitment that the flexibility has allowed them. There is a statement in the framework that was released a couple of months ago, which said that the directors of public health will have an official role on both boards. I found that a pretty good statement to have, but it is only a statement that is effective if there is some assurance that that can be delivered on, and there need to be some checks and balances in order to make sure that those kinds of things are not ignored. Because of the variety—some ICSs cater for 2 million or 3 million people, and some for 1 million—you need the flexibility. If you want them to own and deal with the problems of their population, having a little bit of flexibility is the right approach, provided that the minimum standards are met across the whole country.
Edward Argar
Q
Cllr James Jamieson: From a legislative perspective, largely yes. I reiterate the point that I have made a couple of times already: the statutory and non-statutory guidelines will be critical in this area. We need to get them right and ensure that there is real embedded consultation. There are a couple of things that we are concerned about. I have not mentioned them yet, so I will use this opportunity to do so. One is the increase in the powers of the Secretary of State to call in NHS reconfiguration proposals and so forth, and the risk that that would undermine the existing local government influence, overview and scrutiny, so we would ask for a change to schedule 6 of the Bill in order to ensure that there is consultation at a local level before those powers are enacted.
The second area—it is probably not what you are asking about, but it is important that we raise it—is assurance around social care. It is good to have assurance around social care, but we need to make sure that that assurance is proportionate and is in context. Bearing in mind how stretched social care is from a financial perspective, it would be unreasonable to expect social care to do more than its budget allows it to do. In the same way, social care is also very dependent on the performance of the NHS, community care and so forth. We have some concerns around that assurance framework, which needs some work.
Edward Argar
Thank you, both. Mr McCabe, I am conscious of time and our programme motion, so I will pause there.
The Chair
Thank you, Minister. I thank both our witnesses for their evidence.
Examination of Witnesses
Eluned Morgan, Lyn Summers and Mari Williams gave evidence.
The Chair
We will now hear from Eluned Morgan, who is the Minister for Health and Social Services in the Welsh Government. I hope that I have pronounced your name properly. We will also hear from Lyn Summers, head of health and social services central legislation team, and Mari Williams, senior lawyer (health)—both from the Welsh Government. All witnesses are remote, and we have until 5.15 pm for the session.
Dr James Davies
Q
Eluned Morgan: Thank you very much for inviting me to give evidence this afternoon. Obviously the Bill mainly relates to England, but I want to say that I understand what the Bill is trying to do and achieve and I am pleased that it represents some moves towards removing market competition from health and care. I am very pleased to say that we have never had that in Wales because we have our system of unitary health authorities.
There are a number of areas of the Bill that impact Wales. I have set out the significant concerns I have in a letter to Minister Argar. I would be very pleased to present the letter if that is helpful to the Committee. To summarise that letter, there are nine areas of the Bill that I think require the legislative consent of the Senedd. I have set out these areas in a legislative consent memorandum, which has been laid before the Senedd. We are currently in a disagreement with the Department of Health and Social Care UK regarding some of the clauses that the Welsh Government consider to fall into the areas that require the legislative consent of the Senedd. There are a few where we both agree that legislative consent is needed.
In response to your question, Dr Davies, the aspects of the Bill will impact Wales are special health authorities; accounts and auditing; clause 78 on hospital patients with care and support needs—that is the one you referred to, I think, with the border issue; clause 85 on a UK-wide medicine information system; clauses 86 to 92 on transfer of functions between arm’s length bodies; clause 120 on international healthcare agreements; clause 123 on regulation of healthcare and associated professions; and clause 127 on food information for consumers. We consider clause 125 on advertising of less healthy food and drink an important point for us. Clause 130 is also really important to us. The power to make consequential provision also falls within the legislative competence of the Senedd. I think that is something that is worth looking at. I am happy to go through some of the detail on those if that would be helpful to you. Should I continue with that, Dr Davies?
Dr Davies
Q
Eluned Morgan: Interesting. We do not necessarily have an issue with the policy of some of them, but we are very concerned with some aspects of the constitutional shift and power grab that is happening here from the UK Government’s point of view. For example, the provision on arm’s length bodies is going to impact Wales in several ways. The UK Government are suggesting a requirement to consult the devolved Administrations before those powers are exercised. Frankly, that is just not good enough, because that memorandum of understanding, which the UK Government offered to present to alleviate some of our concerns, is a passing thing. It cannot be enforced by law and it does not bind future Governments, so we are very keen to see all the areas that impinge on our powers move from a duty to consult to a duty to get the support of the Senedd. There is a fundamental shift that we would like to see because we feel that our powers are impinged on.
The other point, which is quite interesting in the context of what is happening with Brexit, is that a number of clauses contain powers that enable the UK Secretary of State to make consequential amendments to provisions in a Senedd law. That is absolutely constitutionally unacceptable. It is fascinating when you think that part of the reason for the UK leaving the EU was to remove an outside institution’s ability to legislate in relation to the UK, yet the irony seems to be completely lost on the UK Government when the same consideration is not applied to legislation in the devolved Administrations in areas where it is absolutely clear where the power should lie. Those are the two fundamental issues that I am concerned about.
Dr Davies
Q
Eluned Morgan: There is clearly merit in having a system where data can be shared. We do not have a fundamental objection in principle to that and we would be very keen to set up systems that can speak to each other. I guess our objection would be where we are forced to share information that we do not necessarily feel should be shared. Why is that information needed and for what purposes? We would have to be very clear on that. It is not an objection in principle. In our discussion, I was very clear that I think it makes perfect sense for us to get those systems to be able to speak to each other. Again, it is more about the constitutional issues that have been thrown up and the UK Government’s ability to work in our NHS system and to gain information that is not theirs to have. If we want to give it, we are more than willing to do that.
The Chair
Before I move on, do Ms Williams or Ms Summers want to add anything to the questions that have been asked so far?
Eluned Morgan: I do not think they have got anything to add.
Karin Smyth
Q
Eluned Morgan: We are all very aware that the care system is under incredible pressure at the moment. In Wales, we have been able to introduce new systems through legislation that give our health services the power to co-operate and work, within a legal framework, with the care services and local authorities. That has made a significant difference already. We have a long way to go, and this is only the beginning of the process, but that is an example of where a close working relationship, and providing the framework that allows that to happen, is working well. It needs to go a lot further, though.
The Chair
Thank you. Do either of you wish to add anything to that?
Eluned Morgan: Lyn or Mari, do you have anything to add?
Mari Williams: No, thank you.
Dr Whitford
Q
Eluned Morgan: To be fair, my officials have had regular meetings with the Bill and policy teams, and I have met once with Minister Argar to discuss the Bill. However, I am afraid that that did not lead to our key concerns being addressed before the Bill’s introduction.
I concur with you that we were really disappointed at the lateness of the notification of this Bill, and the absence of engagement with the Welsh Government in terms of the practicalities of the outcomes of discussions. For example, we received sight of the White Paper statement on the Bill only on the afternoon before it was published. We had sight of all the Bill’s clauses only the day before introduction. With the best will in the world, we have some brilliant officials in the Welsh Government, but even they cannot work at that supersonic speed. We did not have the opportunity to look at all the final clauses and to respond to them before the Bill was introduced.
The point is that if the UK Government are serious about saying that we will be consulted, this is not a good model for them to show us that we have been consulted. Their stated aim was, “In your areas, where the power is rightly yours, you will be consulted.” If this is the model that they are going to use, we are in for a really tough time. That is why I would concur with you that the real issue is that we want consent on areas that are rightfully and constitutionally ours.
Dr Whitford
Q
May I ask you a short, specific question? The healthcare services safety investigation body is England-only at the moment, but it is described that investigations could be requested in Welsh cases due to people coming over the border. Is that something that the Welsh Government are considering? At what level would such a decision be made? Would that be a local request, or would it go up through your central structures?
Eluned Morgan: Lyn or Mari may want to come in here. The key thing to remember—Dr James Davies will be aware of this—is that a huge amount of cross-border working happens between Wales and England, so it is important that we understand each system. I do not think that we would have an objection in principle to working in the way that you suggest, but where, for example, there is a body that is “England and Wales”, it is rightly written in our legislation that we cannot be told what to do. It is not about the policy itself. For example, if there is an auditing issue, we will not go to war or have a fight about how something is audited; it is the process that we are concerned with. It is not that we would object, but it is rightfully in our power to determine whether we want to do something.
Dr Whitford
Q
Eluned Morgan: Absolutely, and we are developing our own systems in relation to those things, of course. It is our patient information, and we should be deciding who has access to it and when.
Alex Norris
Q
Eluned Morgan: I am more than happy to send the correspondence that I have sent to Minister Argar to the Committee, so you can see it. It sets out all the issues that we are concerned with in relation to the Bill.
Alex Norris
Q
Eluned Morgan: I am not aware that we have seen an impact assessment. Lyn and Mari may have more to add.
Lyn Summers: No, we have not.
Alex Norris
Q
Eluned Morgan: This is in relation to nursing. We have a law on safe staffing levels in nursing. Not only has it been implemented, but it has been extended since we brought in that Bill. It is something that the Royal College of Nursing is hugely appreciative of, and something that we are keeping an eye on. It has made a difference to patient safety, and we in the Welsh Government take it very seriously.
Edward Argar
Q
I want to pick up on something that colleagues have touched on and which you have highlighted around the model of integration in Wales—the unitary model, for want of a better way of putting it. I acknowledge that you said it was early days, but I would like to get a sense of how you feel that model is delivering a national system but allowing local flexibility, and of the extent to which it is delivering, even in its early days, improved health outcomes for patients in Wales. As we look at ICSs and closer working between local authorities and the NHS in England, it may be instructive for us to learn from your experience, even if it is not a direct parallel, and from what you are seeing, even in these early days.
Eluned Morgan: We had a parliamentary review that looked at our NHS and care system, and went into a lot of detail about what we could change. A lot of it was about the need to integrate—[Inaudible.] What we have done as a result is take an interim step towards better integration. We not only set up the legislative framework for that, but put significant funding into driving these health and care systems to work together. We had an integrated care fund and a transformation fund. We found that both the health service and the care service really liked the new approach. They really have engaged. We have kind of allowed a thousand flowers to bloom here, and there have been some really innovative ideas and work. How do we get people out of hospital quicker? How do we drive that change? There have been some great examples.
What we are still struggling with, if I am honest, is that we are still finding difficulty getting both the health service and the care service to understand that what they have changed and what works well now needs to be mainstreamed. There cannot be additional funding forever. The purpose of that additional funding was to give the confidence to do it in the mainstream. We are finding that they have pocketed that money, saying, “This is great. Can we have more, please?” We have tried to make it clear to them that that was never the idea. The idea was for them to have that transformation funding to drive change.
That is our next challenge, and that is what we are working on now, but there are ways of doing that. Clearly, this is a difficult time to be doing it, but some health boards are frankly being driven into closer working relationships, because there are so many examples of delayed transfer of care given the infrastructure at the local government level. Do not forget that in Wales we have not seen anything like the cuts that have happened in England, but even we are feeling the pressure in quite a significant way, and we are having some real issues in relation to recruitment to the care workforce in particular. That is the biggest challenge for us at the moment.
Edward Argar
Q
Eluned Morgan: It has been quite interesting. With care, for example, we have found that a lot of competition was going, such as between the independent care providers and the local authority—they were poaching from each other. All of that was damaging to the public purse and to the provision that we could give. Now we are in the process of developing an all-Wales framework within which people who want to provide care in Wales will work. That is what we are working on—a new legislative framework that will provide the infrastructure and give the minimal standards that they will have to meet. It is also making sure that we are driving quality through the system.
Edward Argar
Q
Eluned Morgan: What is difficult is that we started this process pre-pandemic but, clearly, with the pandemic we are in a very different situation. It is difficult to say what the model would look like in normal times, because we have had 18 months of something very different. It is hard for us to assess that evidence in the light of our circumstances at the moment, if I am honest.
The Chair
No one else? As there are no further questions, I thank you, Minister Morgan, and your officials for the evidence that you have provided today.
Eluned Morgan: Diolch yn fawr.
Ordered, That further consideration be now adjourned. —(Maggie Throup.)
Higher Education (Freedom of Speech) Bill (First sitting)
(2 years, 7 months ago)
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The Chair
We are now sitting in public and proceedings are being broadcast. I have a few preliminary announcements. The first is that obviously there is not room for all the members of the Committee to sit around the horseshoe. Therefore, some are already sitting in what we used to call the Public Gallery. For those who are sitting in those places, it will not be possible to speak from that position, so if you wish to speak you will need to go to the microphone, which is situated over to the right. I am very sorry, but that is the disadvantage to those who have arrived and found themselves without a seat around the horseshoe.
We are asking people with speaking notes to send them to hansardnotes@parliament.uk, but I hope that this morning’s proceedings will be rather brief and we that will concentrate on questions rather than statements. We will obviously try to keep mobile phones off and ensure that we do not breach the rules in relation to refreshments: tea and coffee are not allowed during sittings. Today, we will first consider the programme motion, then the motion to enable the reporting of written evidence, and then a formal motion to sit in private while we discuss among ourselves who will do what in relation to asking questions of our witnesses.
I call the Minister to move the programme motion standing in her name, which was discussed yesterday by the Bill’s programming sub-committee. I think that the Committee will probably be in agreement.
The Minister for Universities (Michelle Donelan)
Thank you, Sir Christopher. I beg to move, Date Time Witness Tuesday 7 September Until no later than 10.30 am Professor Kathleen Stock OBE, Professor of Philosophy, University of Sussex; Dr Arif Ahmed, Reader in Philosophy, University of Cambridge and Fellow of Gonville and Caius College Tuesday 7 September Until no later than 11.25 am Trevor Phillips OBE; Professor Nigel Biggar, Regius Professor of Moral and Pastoral Theology at the University of Oxford Tuesday 7 September Until no later than 2.45 pm Professor Stephen Whittle, Professor of Equalities Law, Manchester Metropolitan University Tuesday 7 September Until no later than 3.30 pm Shakespeare Martineau Tuesday 7 September Until no later than 4.15 pm Policy Exchange Tuesday 7 September Until no later than 5.00 pm Free Speech Union Monday 13 September Until no later than 4.15 pm Professor Eric Kaufmann, Professor of Politics, Birkbeck College, University of London; Professor Matthew Goodwin, Professor of Politics and International Relations, University of Kent and Director of the Centre for UK Prosperity at the Legatum Institute Monday 13 September Until no later than 4.45 pm British Future Monday 13 September Until no later than 5.15 pm Office for Students Monday 13 September Until no later than 6.00 pm Jonathan Grant, Professor of Public Policy, King’s College London; Paul Layzell, Principal, Royal Holloway, University of London Monday 13 September Until no later than 6.45 pm Antisemitism Policy Trust; National Union of Students
That—
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 7 September) meet—
(a) at 2.00 pm on Tuesday 7 September;
(b) at 3.30 pm and 5.30pm on Monday 13 September;
(c) at 9.25 am and 2.00 pm on Wednesday 15 September;
(d) at 11.30 am and 2.00 pm on Thursday 16 September;
(e) at 3.30 pm and 5.30pm on Monday 20 September;
(f) at 9.25 am and 2.00 pm on Wednesday 22 September;
2. the Committee shall hear oral evidence in accordance with the following Table:
TABLE
3. proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 9; the Schedule; Clauses 10 to 12; new Clauses; new Schedules; remaining proceedings on the Bill;
4. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 23 September.
The motion will ensure that the Committee has sufficient time to fully scrutinise this piece of legislation. I am delighted that the House has been given the time that it requires to thoroughly debate the contents of the Bill, and draw evidence from the experts, many of whom, I am pleased to say, my Department is already talking to or working closely with, such as Nicola Dandridge of the Office for Students, Danny Stone and Trevor Phillips. I therefore invite colleagues on the Committee to agree to the motion.
Question put and agreed to.
The Chair
We will therefore proceed to line-by-line consideration on Wednesday 15 September. That means that the deadline for tabling amendments to be considered on the first day is the rise of the House on this coming Friday, 10 September.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Michelle Donelan.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room, and will be circulated to Members by email.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Michelle Donelan.)
The Chair
We now move into private session to discuss lines of questioning. Members of the public who are present, and officials, will need to absent themselves —hopefully not for very long.
The 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 Jones
Q
Professor Stock: I think that is already happening, for what it is worth, so I am not sure you are going to be able to change that in any way. I think that people are coming to interview on the basis of their views.
Mr Jones
Q
Professor Stock: I understand the question; I just do not really see how this—you have not pointed to a particular aspect of the Bill that would encourage that situation. I think that situation may already be in place. Arguably, if we change the culture of universities so that people—administrators as well as academics and students—come to understand why it is a good thing to have viewpoint diversity and a good thing to have civil disagreement, that might be less likely to happen. This should not just be a bureaucratic, box-ticking exercise. Done right, it should change the culture of the university sector, and that will have ramifications for far more than the university sector, I think; it will have good, positive implications for civil discourse generally. However, I do not see how this is going to somehow increase the chances of people being excluded on the basis of their views at the recruitment stage. We are still at HR—
Mr Jones
Q
Professor Stock: It is one of my arguments.
Mr Jones
Q
Professor Stock: I have answered that to the best of my ability. I have understood the question each time you have asked it and I have answered to the best of my ability.
Dr Ahmed: My understanding—maybe I have got it wrong—is that new provision A1(9) does mention the case where someone is applying to be an employee of one of these institutions, and they will not be adversely affected by virtue of their free speech expression in those circumstances. It is my understanding that the Bill does say something about that.
The second thing that I would say is that independent of the issue about universities employing or not employing people in order to attract students, the Bill would have the effect, I believe, of discouraging students from thinking that they could put pressure on universities to fire or discipline people by virtue of their views, so it would prevent mobs from forming, mobs that have formed against people I know at Cambridge and other people in the country, because they would know that it would not have an effect.
Mr Jones
Q
Dr Ahmed: I do not think that the employer—that is, the management of the university—gets up in the morning and thinks, “How am I going to stop free speech? How am I going to fire these people?” They are responding to pressure from what I think is quite a small group of activists within universities. If this legislation has the effect of creating some kind of countervailing pressure, then you are right. Of course it is not going to solve the problem; I have been a trade union official myself and I know something about what these issues are. Of course it is not going to solve the problem, but it will help, because I think it will create pressure in the opposite direction.
The Minister for Universities (Michelle Donelan)
Q
Dr Ahmed: You can distinguish between hard censorship and soft censorship. Hard censorship, in my understanding —the distinction is evident in the written evidence that I submitted—means universities actively suppressing certain kinds of speech by enacting certain kinds of regulation. I think we have seen different examples of that, which I am happy to discuss.
Soft censorship is where there is not any regulation, but people know—people sense it themselves, because they know that if they say this, or they say that, or if they present these views, they will be regarded adversely. If they are a student, they might be ostracised
. It might make difficulties for their academic career. That is the result. Because, as it happens, we have an academy, which, at least in some parts, is predominantly in one part of the political spectrum, the result is that certain kinds of research do not get done and certain kinds of views do not get defended by people who, in their hearts, perhaps, believe in them.
Michelle Donelan
Q
Dr Ahmed: Yes, I do. Obviously the Bill itself does not go into great detail as to what it means by the word “promote”, and I think that is sensible, because it may mean different things in different institutional contexts, but it could mean, for instance, things like events at induction for students, so that people are made aware in ways that they are not now made aware, certainly at my university, just how essential freedom of speech and freedom of thought is to the very functioning of the university, and indeed to being able to function as an adult in a healthy democracy.
It could mean things like making it central to decision-making processes at all levels of the university, so that when we make decisions, we do not just think about the equality and diversity implications of this planned decision, which we do as a matter of course, but that it becomes just as reflexive that we think about the free speech implications of a measure. That is something that certainly Cambridge and I expect most other universities and other academic bodies are not doing.
Michelle Donelan
Q
Professor Stock: I echo that. I think it was implicit in my earlier answer, that one of the attractive things about this Bill is the promotion aspect—that it is not just a defensive crouch and it is not just punitive; there is an opportunity. I believe in academic freedom, so I think I could explain to people why it is an important thing and we could discuss that—argue about it, even. It would be encouraging that sort of aspect of university life, which would have knock-on effects all over the place—on Google in particular.
Michelle Donelan
Q
Dr Ahmed: That was one of three amendments that went through on a large majority. The reason for the concern was that the use of the word “respect” and the requirement for respect in that context meant respect for all kinds of ideas and identities as well. That would preclude, for instance, mockery. It would preclude views that give offence to people who hold religious views. My own particular interest is religion. For instance, I teach the work of David Hume. David Hume was about as offensive in his mocking of religion as anyone was in the 18th century. Would I be able to teach that, because his views were certainly disrespectful towards religion?
Another point, of course, is that whether something counts as respectful depends on how willing the person you are disrespecting is to take offence. So, more sensitive people will end up with a kind of veto. We all have our own examples of people who are especially sensitive taking offence. Those people will end up having power over what we can say and what we cannot. The effect would be absolutely to strangle any form of rigorous academic discussion over the most important things in life. That was why I thought the word “tolerate”, which has no connotations of admiration and is completely compatible with mockery—it simply rules out stopping people from practising or having those beliefs—was more useful, and, evidently, many of the dons at Cambridge agreed.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
Q
“freedom within the law to question and test received wisdom”
to
“freedom within the law and within their field of expertise”.
I have concerns that a Bill that is allegedly intended to promote academic freedom could in fact limit academic freedom if you are limited to defining what is your field of expertise. I welcome your comments on that.
The other point in the Bill which concerns me around the alleged promotion of academic freedom versus the reality of the Bill is that it talks about academics and not academic staff or those working within the university. They seem to be exempt from coverage under the Bill, as are visiting academics. What are your thoughts on what the Bill does to promote academic freedom? Where can it be strengthened or changed to actually promote the academic freedom that I believe we all support? Maybe Kathleen first.
Professor Stock: I suspect that we differ on this answer, but I think the difference between academic freedom and freedom of expression, assuming there is one, can only be in principle grounded in expertise. That is what makes the difference between the person who has freedom of expression generally and the person who has special protections as an academic. To put it briefly, that is because academics are perceived to have a certain authority, so their authority should be rigorously tested. They should not be able to get away with just saying, “It is just like this, and you have to accept my word for it.” At the same time, there will be people who want to shut them up or buy them off, so we have to keep them protected.
However, I do see that in practice in a university it might be quite difficult to distinguish between these. For instance, there are a lot of professional services that have PhDs who are looking to get into academia. There are students studying and also working for the university in various capacities, so the blurring is quite present. In practice, it might be that that clause does cause problems and may need to be rethought. In principle, though, that is the rationale for this whole conversation on expertise. There is a further discussion about how to differentiate different fields of expertise.
Emma Hardy
Q
Dr Ahmed: I agree with Professor Anderson’s point with regard to the clause about a field of expertise for a few reasons. One is that, as Kathleen says, there are difficulties around defining a field of expertise. To use an example reasonably close to my own heart, if you take Professor Richard Dawkins, one could argue that theology is not his area of expertise. Many theologians would argue that it is not even his area of competence. I would dispute that myself, but it could be argued. Nevertheless, we would certainly want a Bill that protects his freedom to muse about religion as he likes. That is one issue.
The second issue, which is one Professor Anderson showed very well, is that much innovation in science—and I use the word “science” very broadly—comes from cross-fertilisation between fields. Biologists might have insights into economics, let us say, even though it is not their field of expertise or perhaps even their field of competence. That is often where the really interesting and innovative insights come from. A Bill that restricts academic freedom to one’s area of expertise might well have a chilling effect on those kinds of interactions. For both those reasons I agree with Professor Anderson’s suggestion that the restrictions of expertise should be dropped.
With regard to your important point about whom the Bill covers, the way I think of it is that universities are institutions that have public money. They serve a public purpose and it is essential that that involves free speech, freedom of inquiry and freedom to exchange ideas. Therefore, the simplest way to achieve that would be to have a Bill that covers all staff at universities and all students, rather than making what are possibly invidious and certainly difficult-to-draw distinctions between all academic members of staff.
Emma Hardy
Q
Dr Ahmed: Well, I certainly do. You say there is a concern that it takes a heavy emphasis on students’ freedom of speech and things like that, but it is one of the things that has been under threat.
Emma Hardy
Q
Professor Stock: I took it as implicit. I did think it was slightly confusing because those two things are usually theoretically distinguished—“What is the difference between freedom of speech and academic freedom?”—so it is a bit confusing that “freedom of speech” is the phrase. However, given the context of “Higher Education (Freedom of Speech)”, I thought “Well, this just must be about academic freedom” but, in terms of drafting, that could be clarified.
I would just add, on who it applies to, I think the more temporary and precarious the person’s position, the heavier the duty we have to protect their speech. It is well understood in classical discussions about academic freedom that being in fear of losing your job, of not getting a promotion, or of not pleasing your supervisor, would give you extra reasons to be quiet, to self-censor and so on, so I think it is important that it applies to temporary and part-time positions.
Emma Hardy
Q
Dr Ahmed: I do agree with that, but, of course, there are plenty of examples, as we know, of students who have also suffered adverse consequences. As I understand it, the term “adverse consequences” is defined in the Bill for academics, but is not defined for students. However, under any natural understanding of the term, students have suffered adverse consequences by virtue of disciplinary investigations, which have often gone on for months—even if no finding was issued against them—for things that were not illegal and were, at worst, slightly shocking. I think, in some ways, it is worse for people who are 18 or 19 than for someone like me to have to go under a discrim investigation; it could ruin their entire career.
The Chair
I will bring in another one. You can come back later, if there is time. We are pressed for time, because this panel must finish by 27 minutes past 10.
Fiona Bruce (Congleton) (Con)
Q
Dr Ahmed: With regards to self-censorship, I mean something similar to what I said to the Minister when I mentioned self-censorship: people simply not saying things that they think on matters that are important, or not pursuing lines of research that they think might be fruitful, because they fear the consequences, whether that is full disciplinary action or some other form of ostracism, such as being overlooked for a promotion or various other things. That is what I mean by self-censorship.
The principle bulk evidence that I have is from the University and College Union survey of 2017, which was included in the report for the UN in 2019. It says that 35.5% of UCU members who answered the survey said that they self-censored, compared with something like half that percentage for the rest of what was then the EU.
That is roughly what I mean by self-censorship. I have come across plenty of examples of that. When I was campaigning for the liberalised free speech policy at Cambridge, many people said to me that there are a whole range of issues—from issues to do with race, with transgender, and with Israel and Palestine—on which they were simply unwilling to say what they thought because they feared the consequences. Those are obviously matters of huge importance. That was the first thing—self-censorship.
The other thing that I mentioned was regulation; perhaps I should say micro-regulation, because what I mean is universities placing formal obstacles in the way of people saying things that are perfectly legal.
To give one example, my own university recently put forward a policy, which has now been withdrawn, on discrimination and harassment, which included a variety of things regarded as micro-aggressions. These are things we should avoid. None of them is illegal, as far as I can tell. In fact, on some of them, particularly the one in my case to do with religion, if I had actually heeded that policy it would have impeded my own teaching and professional activity.
Fiona Bruce
Q
“towards recreating a culture of robust and completely open debate without which a university education loses much of its point.”
How effective will the Bill be in achieving that, and what more do you think needs to be done?
Dr Ahmed: With regards to how effective I think it will be, I would look at the Equality Act 2010 and the way in which that has created over the last 10 years a change in the culture of higher education institutions. It was not immediate; it was gradual and it occurred through the institutionalisation of certain values. More generally, the most important thing in human life, the most important determinant of human behaviour, is habit. If we get into the habit of speaking freely and of thinking about these things at all times, eventually it will feed into our values and into our ways of thinking about what a university should be, so I am reasonably optimistic. Obviously, it is an empirical question and there is a paucity of data, but in some way the 2010 Act gives me some hope.
John McDonnell (Hayes and Harlington) (Lab)
Q
You expressed concern about some elements of the Bill. The Bill itself lays a huge range of conditions on student unions and university and academic institutions, and then it brings in potentially draconian sanctions, but we do not know what the sanctions are yet. They all reside at the moment with the Secretary of State. Do you share my view that if the Bill is to proceed, we have to be careful about unforeseen consequences? If we place a duty on a body, there should be a mechanism to ensure that the duty is exercised effectively and under advice as well. There are no advisory structures set out.
For example, you cited in your evidence various incidents that have taken place. There is no mechanism by which you can advise on how things can go forward. In addition, with regard to the sanctions, my worry is that although others might have confidence in the Secretary of State, I have never had confidence in any Secretary of State without direct accountability to Parliament that is open and transparent. At the moment we do not even have a schedule of what sanctions could be levied against institutions and individuals as well as student union bodies. In addition, we have introduced another opportunity for claiming a tort instead of going for a breach of duty as well, which is broadly framed in the Bill but is not specific.
When you raised this question, it struck home with me. Do you believe that there should be elements in the Bill that give us more guarantees about its implementation so that it is effective, accountable and transparent? That means building in mechanisms for future advice. It means being more explicit about the nature of the sanctions and how they operate. To be frank, if I were an administrator at one of these bodies at the moment, I would be working in the dark about how the Bill will be implemented.
Professor Stock: I can see that it is a risk. In a sense, every time you legislate, I assume you are a hostage to fortune to some degree because there is always—
John McDonnell
We try to limit that risk.
Professor Stock: I am not saying that is a good aspect of any legislation. I agree that up to a point a lot is left unspoken. A lot depends on the interpretation of the Bill by whoever the free speech champion is. They are going to have to drive the project. It is going to be really important to get the right person and they are going to have staff, obviously, but I cannot reassure you on these points—I did not draft it.
I have read various critical responses to the Bill that talk about the possibility of vexatious complaints and lack of transparency, but it seems to me that, while I am not downplaying those as potential issues, we also need to remember that there are lots of vexatious complaints against individuals going on at the university level and there is a lack of transparency there. We are talking about institutions. There is more than one set of vexatious complaints to worry about and, arguably, only one of those ruins people’s lives, so that is to the forefront of my mind, but I accept that there is indeterminacy here, because I think there has to be legislation.
John McDonnell
Q
The Chair
It is, but you are not the one giving the evidence. Dr Ahmed, do you want to say anything on this?
Dr Ahmed: I have relatively little to add to what Kathleen said on that point. The only thing I would add is that I would like to see a situation in which there was a possibility of extremely draconian measures against universities that are not fulfilling their basic function, and in an ideal world they would never be used.
Sir John Hayes (South Holland and The Deepings) (Con)
Q
Dr Ahmed, you wrote in your evidence, and you have repeated it today, about self-censorship and how that had changed. Would it be fair to say that the culture in universities has changed quite radically? You mentioned the Equality Act, and you might just as well have mentioned the growth of the internet and the intimidation that is delivered through that. How far does that soft censorship, which you implied a moment ago, affect people’s prospects at universities—the acquisition of fellowships, promotions, funding and so on? What evidence do you have that that has changed in universities, in your academic experience and more widely?
Dr Ahmed: With regard to your point about the internet, I would echo some of the things that Kathleen said in her written evidence, to the effect that Twitter, for instance, allows the mobilisation of mobs, quite quickly, against individual academics. That has been one of the effects. As you said, in addition to the Equality Act, the internet has had an effect on that—by which I mean Twitter.
With regard to self-censorship, my own experience has been that it has changed drastically over the last 10 years. Now, for instance, one would regard it as a typical experience to be in meetings where things are being proposed where I certainly sometimes—rarely, in my own case—bite my tongue. I know that there are people who bite their tongues in the sense that they will not object to certain things that are pointless and stupid, simply because they are afraid of the consequences.
What are those consequences? It is different in different cases. In my own case, I have tenure, fortunately, and I am relatively secure, but for someone who is on a temporary contract, you do not even have to be fired or face disciplinary action. All that needs to happen is that you come to end of your temporary contract, which you would normally expect to be rolled over, which typically does happen in academia, and they will just decide for some reason—as one of your colleagues was saying, it can be quite easy to invent a pretext—“Well, actually, we won’t be needing you any more.”
People in short-term positions are, I think, especially vulnerable and are perhaps the ones who are most likely to self-censor. My own experience is that this is happening a lot more now than in the past. That is from my experience of meetings with decision makers at high and low levels within Cambridge University.
Sir John Hayes
Q
Dr Ahmed: Correct. Of course, you are quite right that it is the tip of the iceberg. The evidence that we have—I am referring again to the UCU survey, which is the largest evidence base that we have—says that 35% of academics self-censor. When you think that that includes people who work in totally uncontroversial fields, such as Diophantine equations, that is a very significant proportion. There is some evidence, but, as you say, it is probably the tip of a huge iceberg.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Q
Professor Stock, thank you for your evidence. I must say, actually, that your vice-chancellor did sing your praises to me the last time that I met him and said how excited he was for you to be coming here to show the diversity of views at his university. He was very positive, actually, and I have the email to prove it. That might reassure you. He is leaving anyway, so we will see.
You have raised some really important points about making sure that there is diversity in views at a university. Is there a problem, however, if this is put in legislation, that that becomes too strictly defined as requiring balance? We have debates about the BBC and climate change denial, and the need to have equal airtime for people who disagree and for people who agree. Is there sometimes a necessity for a university to develop a course that is balanced not just numerically but also in terms of where the academic weight is?
Professor Stock: There is a useless way to balance and then there is a productive way to balance. The BBC is a completely different context, because often you have to present both points of view simultaneously, and they just start shouting at each other and nobody’s the wiser. However, on a course that extends through time, and possibly over years, it would be unacceptable not to balance. Balance just means going through lots of different points of view that disagree with each other and trying to work out what you think. It means telling the students that it is their job to work out what they think—that they are not necessarily supposed to agree with you just because you think something, but they are supposed to develop their own points of view.
What is happening at the moment, for me personally, is that—completely extraordinarily, relative to the norms of the sector—whenever I do manage to get an invitation to speak somewhere from some poor, hapless person who does not know my reputation in advance, complaints pile in, and they say, “We’ve got to find a trans person to be on stage with you for balance.” I have had the Francis Bacon keynote at the University of Hertfordshire completely changed in format—until covid meant that it did not happen anyway—just because this idea of balance was required. That is much more like the BBC kind of balance. I do not see why I should have had someone right there when no one else is required to have someone there.
Lloyd Russell-Moyle
Q
Professor Stock: You may know the Bill more intimately than I do—I have read it a few times—but I have not seen anything specific about viewpoint diversity. [Interruption.]
The Chair
We can only have one person speaking at a time. Let the witness speak, please. [Interruption.] Lloyd, will you let the witness respond?
Professor Stock: I think I understand. I do not see anything in the Bill. I think that that is a danger. That is a particularly bureaucratic, shallow understanding of viewpoint diversity and balance. The guidance under the free speech tsar should absolutely avoid demanding that every strong articulation of position is immediately countered, chronologically, by its opposite. That would be facile. However, there are other ways of explaining what balance is, of conceptualising balance, that leave that out.
Lloyd Russell-Moyle
Q
Professor Stock: That is a false opposition. It is both. Just for the record, UCU had adopted an irrational view on exactly the issues that I am engaged with. I am no longer a member of the union because it would not support me in my academic freedom, so UCU is not blameless in this area.
David Simmonds (Ruislip, Northwood and Pinner) (Con)
Q
The European convention on human rights is the main underpinning of most human rights rules in the UK, including freedom of speech. The UK, like most of the member states, goes well beyond what that says is the minimum. Given the international nature of academic research and the experiences that you have outlined, I am interested in your view on the adequacy of the minimum protections that that provides for freedom of speech and whether you foresee potential conflicts with other pieces of legislation—for example, inequalities that might result?
Dr Ahmed: With regard to tension with other legislation, I suspect there might well be tension with the Equality Act and difficult decisions to make about a breach of the duty to promote freedom of speech versus the duties imposed under the Equality Act, so I think there are issues that guidance should be able to sort out with regard to what counts. My understanding of the ECHR is that there is the strongest possible protection for academic speech, so almost nothing can count as harassment in a pedagogical context.
Charlotte Nichols (Warrington North) (Lab)
Q
Professor Stock: To clarify, do you mean the tension between academic freedom, freedom of speech and the rules against harassment?
Charlotte Nichols
Q
Professor Stock: I am not saying that, and I do not think the Bill says that, as I understand it. I think this sits within wider sets of laws about speech. I am not a free speech absolutist. The vast majority of the instances that we are talking about are perfectly within the law but are still being censored and having adverse consequences. I acknowledge that there are some kinds of speech that are criminal and should not be allowed in universities. I think the law is quite well set up to deal with things like that. I understand there is already a legal precedent on holocaust denial. I understand your concern—I really do. There is a defensive tendency for universities to leap to the most extreme example. If we adopt entirely or orient our attitude towards those examples, and if we are extra cautious because of these possibilities, we really lose a lot in the middle ground. These things are always difficult. You could not possibly sort it out in 30 minutes.
Dr Ahmed: I agree with almost everything that Kathleen says. There is a distinction between what the Bill says and what I think needs to happen with regard to free speech. With regard to the first point, the Bill as I understand it says free speech within the law, and therefore makes reference explicitly to existing legislation. The Bill therefore does not protect anything that is already illegal.
With regard to my own view, I am close to being a free speech absolutist. Like many people, I think that the law in this country is overly restrictive. Obviously there are some things, for instance to do with court proceedings, confidentiality of applications and so on, where it is proper that there are restrictions. But short of such things, we could be a lot more liberal than in fact we are. That, however, is a separate question from the content of the Bill.
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
I am afraid that brings us to the end of this session. We have no option but to close now, but can I thank both our witnesses today? You have generated a very spirited discussion and stimulated this Committee. I think that is a really good precedent. Thank you very much for coming along.
Examination of Witnesses
Trevor Phillips and Professor Nigel Biggar gave evidence.
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.
Michelle Donelan
Q
Trevor Phillips: Some of these are public. There is the case of the Cambridge porter who said something that was regarded as disobliging on the issue of gender and trans. Eventually, he had to step down from his role. There is the case, again, of Noah Carl at Cambridge. I suspect that Professor Biggar will probably have more examples to offer you, but if you would like I can certainly follow up with a note on that.
If I may respond honestly, my view is that the bigger risk is not that there are a few celebrated, or notorious, I should say, cases of people who have lost their livelihood; the bigger issue for me is that what is happening now is that people can see that they could lose their livelihood and therefore do not engage in what universities are for, which is free and open debate and, even more importantly, unbiased, courageous inquiry. One of things that we know—this I cannot give you examples of, because I do not have permission—is that there are some lines of inquiry, not just in the humanities but in science, that are not pursued because people who would pursue them think that it would be too controversial.
Perhaps I can give you a very simple example. Twelve years ago, when I was in public office as chair of the Equality and Human Rights Commission, I tried very hard to get a university or some other research body to do some work on the academic success of children of Chinese heritage. For two years we offered money. No institution would take up that research project because they said—I had this from three or four of them—that it would stigmatise other ethnic groups. I thought that was an important thing to understand, not least because other minority groups and, we now know, the majority community in this country, could learn from the success of that group. Up until now—right to today—we have no knowledge of why that group is so consistently successful academically. That surely is one of the losses we are seeing because of what I may have called creeping censoriousness.
Michelle Donelan
Q
Professor Biggar: My view is that the Bill would protect lawful free speech. The law as it stands prohibits speech that would incite violence or racial hatred or hatred against people for their religion and so on, and the Bill would not change that. We have already heard concerns about holocaust denial. Under the law as it stands, in the light of European Court of Human Rights case law, holocaust denial is not unlawful; it is just that if you give expression to such a view and you are denied a platform or suffer some detriment, you cannot claim the protection of the law. It is a delicate position. I do not think this Bill is going to protect unlawful speech.
Michelle Donelan
Q
Trevor Phillips: Yes. I do not really see what in the text of the Bill would produce that result. I think you would have to construct a very outlandish scenario for that to happen.
Lloyd Russell-Moyle
Q
Trevor Phillips: Forgive me—you say I mentioned the what?
Lloyd Russell-Moyle
The porter is not an academic member of staff. A porter is a non-academic member of staff, without academic privileges. My understanding is that they would not be covered under the Bill. Are you suggesting that the Bill would need to be expanded to all contractors? Most porters in most universities now are not even necessarily employed directly by the university; the services are subcontracted out. Are you saying that it should be expanded to all contractors—to everybody that the university has a relationship with?
Trevor Phillips: No. The individual was an employee, actually, in the same way as an academic.
Lloyd Russell-Moyle
Q
Trevor Phillips: I am not a lawyer, but I do not think in terms of employment law there is any differentiation.
Lloyd Russell-Moyle
Q
Trevor Phillips: I think I understand the premise of your question, but I do not really agree with it. The expression of an opinion, one way or another, should be protected, whatever your job. The reason that this particular individual ran into difficulty was not because he was not being asked to lecture students. He was a Labour councillor, and I think it was in that context that he uttered the views that were thought to be disobliging. The point here is that the censorship that is taking place is not just to do with what academics may be saying to their students in tutorials or lectures; the censorship here is being exercised against any individual who happens to be associated with the institution who may or may not take a view or write something in any guise.
We can take the case, for example, of Noah Carl. I do not agree with anything Noah Carl has written, by the way. However, the criticism of him was that he wrote an article in a journal that also published views that were disobliging; it was not actually about his views. The point here is that I do not think there is anything in this Bill, or indeed the harm that it is designed to remedy, that separates the questions of what might be said as part of a job and what might be said as a human being.
Lloyd Russell-Moyle
Q
To both of you, I am interested in who does the judging of where the limits of free speech are. You could say something controversial, something that somebody thinks is Islamophobic or antisemitic. In your view it might not be and you have the right to express that view, but surely there is a right to a backlash and for people to express their distaste for distasteful views. There is a right to offend, but there is also the right to be offended. How do you stop a chilling effect when stopping people’s right to express their distaste?
Professor Biggar: Of course people have a right to express distaste of any views they wish. My own view is that universities ought to be in the business of teaching future citizens to express their passionately held views civilly, rationally and robustly, without abuse. If universities do not train citizens to be civil in that fashion, we can expect violence on the streets way down the line, to be melodramatic. Within the law, it seems to me that universities should impose norms of civility on either side. But it is not just a matter of people expressing their distaste at gender-critical feminists or critics of Black Lives Matter or people who think the British empire was not entirely wicked. It is not just that; it is the use of political means to apply political pressure—not rational but political—and it is the use of aggressive abuse.
Lloyd Russell-Moyle
Q
Trevor Phillips: There is no right to a backlash. In common law there is a right to protest in this country. I would have gladly seen something in this legislation that referred to that, but the truth is that we do have that right. The issue here is of culture and resilience. For far too long—10 years—I was chair of two regulators: the Commission for Racial Equality and the Equality and Human Rights Commission. Most of our work was not prohibitive; most of it was either permissive or educational. The EHRC publishes books and books of guidance, some statutory, most non-statutory. The aim of that kind of guidance is not to impose threats and hammers, but to give some idea of what the right norms are. That is why this is so important. There is a variety of informal ways in which freedom of expression can be suppressed without breaking any law that you could possibly draft.
Alongside the legislation, there has to be a programme of action to protect diversity of opinion within the higher education sector. That is part of the role of the regulator. The regulator is not a censor; it is there to moderate behaviour, and there are different ways in which that regulator might moderate behaviour. Some of it will be by prohibition and law, but most of it, for every regulator, is through guidance, encouragement, comparison, publication of best practice, and so on.
We ought not to get into a conversation where we simply think of this regulator as a revived Lord Chancellor, with his or her blue pencil, swooping on every campus, looking out for bad guys. The big part of this regulator’s work will be publishing work that demonstrates best practice and the code by which university authorities, and those who are under their aegis, can best guarantee and promote diversity of opinion and freedom of expression.
Felicity Buchan (Kensington) (Con)
Q
Professor Biggar: You are right that, by its nature, it is hard to detect and measure, but there is plenty of anecdotal evidence, and I can tell you from my own experience. The clearest evidence of fear and self-censorship among academics was mentioned by Arif Ahmed earlier: his experience in Cambridge of spending a month trying to get 24 academics to put their heads above the parapet to sign a bit of a paper backing a motion against university policy. It took him a month to get 24 people to do that, but when the vote was held by secret ballot, it went overwhelmingly against the university, by several hundred academics. When those academics were liberated to express their views in secret, they did it, but they would not do it in public. That is one instance, but I think it is a signal instance. I urge you not to underestimate the degree of fear, even among senior academics.
Trevor Phillips: Yes, I agree with Professor Biggar. It is pretty difficult—like proving a negative. People who are too frightened to express their opinions will not tell you that they are too frightened to express their opinions. However, we do know that there are many examples.
Personally, I am a bit less concerned about the issue of meetings not being held and so on, and far more concerned about the extent to which academic and intellectual inquiry is being curbed by a culture that says “This thing will be controversial and too much hassle. I’m going to put my effort into something that nobody’s going to argue very much about.” That, I think, is a real, huge danger for the higher education sector in this country. We have lost what the Americans would call the “speak up culture”—the pleasure in disputation and the belief that testing arguments will always improve the state of knowledge. If there is a job for the regulator, it is to restore the confidence of all the members of university communities that it is okay to take a view; that, essentially, it is okay to say things that you know might offend other people, if you believe them to be correct. I do not think we want to encourage gratuitous insult or unnecessary offence, but above all, our institutions are there to encourage intellectual inquiry.
One practical step that might be embodied in the guidance, if not in the legislation itself, is that the default position in universities when it comes to meetings in particular is that they should always be open to all members of that community, so that every point of view is open to challenge. That is at the heart of this: there should be a culture of challenge. Secondly, what we have tried to do at Index is to help students to learn the habits of resilience that allow them to participate in those robust debates.
Felicity Buchan
Q
Professor Biggar: Common sense would say that if grown-up academics are scared, then much more vulnerable students will be even more scared. I mentioned anecdotes. You may know that I got myself into trouble four years ago about my project on colonialism in Oxford, as a consequence of which the Oxford Centre for Global History mounted an official boycott of my project. I then had an approach from a junior research fellow—not a student, but a very junior, insecure academic, without a full-time career ahead of him—who said he agreed with my views and he would like to attend my conference, in May 2018, but would do so with two conditions. Those were that his name appeared nowhere and his photograph appeared nowhere, because he shared an office with two people who had signed one of the three online denunciations of my project. He worried about the future of this career and that he would be punished if they knew that he was associating with me.
That is one instance, but there are others. If that is the case with a junior academic, who is less vulnerable than a graduate student or an undergraduate but still very vulnerable, you can be sure that there are students who are biting their tongues lest they get marked down by their professor. Observe how some professors behave in public in terms of abusing those who disagree with them. If I were a student of some of those professors, I would be very careful. If they can behave that way to other academics, you can be sure that they can behave that way to those beneath them.
Trevor Phillips: Very briefly, most members of the Committee will not know this, but many moons ago— 40 years-plus—I was president of the National Union of Students. On the executive that I led, there was a broad range of opinion, including Conservatives, Liberal Democrats and people who were, believe it or not, way to the left of me. Never a day went by without some ideological dispute or argument breaking out in public. One of the things that strikes me very forcibly is that when I go to campuses and when I read about student politics, there does not seem to be that range of opinion and argument going on on campuses and in student politics. It is not my business any more, but I find that disappointing. I can only read it as the sense, not so much that people are intimidated, but that they just do not think it is worth having the argument. That is very disappointing, because that is where some of our cleverest and smartest people, some of whom are sitting in this room, and some of whom share the Benches on both sides of the Commons, have come from—from that culture of disputation and argument, with a lot of robustness, but a level of respect. That does not seem quite to be the case today.
Emma Hardy
Q
“it fails to protect expressly the freedom of students and academics to voice critical opinions about their own universities”.
You highlight the concern around the narrowing of academics to their field of expertise. Could you expand on why, as the Bill is written, what we could have is a narrowing of that freedom of academic speech?
Professor Biggar: Yes. That qualification—within their field of expertise—is a hostage to fortune and could have the reverse effect of what is intended. For example, if my academic freedom were confined to my expertise, strictly understood, I am a theologian, so if I wanted to protest about policies of decolonising curricula being rolled out in a rather authoritarian fashion by my university, it could be said that as a theologian, I have no standing—what do I know about colonialism? It is not my field; I am not a historian—or if I wanted to criticise some aspect of the general policy of my university, it is not within my expertise. It seems to me that that phrase needs to be removed, so that academics are free to make their views known on any matter that bears on their institution.
Emma Hardy
Q
“one would not want the situation where the free speech of a large group of vociferous protestors is weighed as having more importance than the freedom of an academic”.
It talks about how the Bill is written, giving primacy to freedom of speech over academic freedom. I wondered if you had any concerns about that, or any points about that: how, as the Bill is currently written, we could see a limitation of that academic freedom because of the primacy of the freedom of speech.
Professor Biggar: I cannot help you much with that in detail, except that I think academic freedom needs to have equal standing, because free speech and academic freedom are not the same things. Did you understand that?
Emma Hardy
Q
“it is arguable that freedom of speech would take primacy over academic freedom when the duty is balanced in practice (i.e. you can read the duty as follows: take particular regard to the importance of freedom of speech when taking reasonably practicable steps to achieve the objective of securing academic freedom).”
Would you be recommending, therefore, that the Bill as it is written is addressed to deal with this imbalance?
Professor Biggar: Yes, I would.
Emma Hardy
Q
“the right to lawful free speech will remain balanced by the important safeguards against harassment, abuse and threats of violence as set out in the Equality Act 2010, the Prevent duty and other legislation, none of which we are changing.”—[Official Report, 12 July 2021; Vol. 699, c. 49.]
The University of Cambridge is recommending that that statement, or words similar to it, are included—that clarification is included—on the face of the Bill, and that a steer is provided on how the different duties are to be balanced in practice. Would you support something like that going into the Bill?
Trevor Phillips: No. This is premised on the idea that there is a quantum of freedom of speech that can be shared out between different parties. I fundamentally disagree with that: I think that freedom of expression, rather like love, is infinite, and that you do not balance one lot of freedom of expression against another lot of freedom of expression.
Emma Hardy
Q
“the right to lawful free speech will remain balanced by the important safeguards”.
Are you disagreeing with the Secretary of State that we should have this?
Trevor Phillips: I have not read the speech by the Secretary of State, but if he put it in the way you have just put it, yes, I am.
Professor Biggar: Could I respond to that briefly? Certainly, there will be a balance, but the crucial question is, “What kind of balance?” It seems to me that that needs to be a matter for negotiation between the Office for Students, via its director, and universities, because this law will change the legal environment. There needs to be a shift in the dialogue.
Emma Hardy
Q
Professor Biggar: I am not sure what that would achieve. I would not object to it, but it does not tell you what the balance is going to be, which is the really important question. A statutory requirement of balance would not do any harm.
Fiona Bruce
Q
“In its current form, the Bill would still allow discussion in an academic context to attract allegations of having the effect of harassment under section 26 of the Equality Act 2010.”
Could you elaborate on your thoughts, please?
Professor Biggar: First, the Bill is not proposing to amend the Equality Act. That is quite clear; however, there is tension between the requirements of the Equality Act and the duties to secure and promote free speech and academic freedom that the Bill would establish. The tension arises around the definition of harassment. It is quite right that those with protected characteristics should be protected from harassment. The problem is that harassment is often interpreted by universities—not so much by courts—in such a fashion that dissent from, disagreement with and criticism of becomes harassment. That is obviously a dampener on free speech. The Bill will not resolve that, but I am sure that the OfS, through the director for freedom of speech, will have to discuss with the university how the Act is interpreted in the light of this legislation. The effect of this legislation would be to underscore the free speech and academic freedom elements, and might result in a more conservative interpretation of the Equality Act.
Fiona Bruce
Q
Professor Biggar: That is a very fine distinction, the significance of which escapes me for the moment.
Fiona Bruce
Q
Professor Biggar: If that is a tighter definition, then yes.
Fiona Bruce
Q
Professor Biggar: As I understand it, at the moment the Bill allows civil proceedings, but appeal to the courts is expensive and risky. It seems to me that academics who have lost their job ought to have readier access to lodge a complaint than through the courts. I am not a lawyer, but that seems to me to be the case.
Fiona Bruce
Q
Professor Biggar: Yes. The case of Noah Carl, as I mentioned earlier, is an egregious case. I cannot talk about the details of the case, but from what I have read a request has been made about it, and he did not have ready recourse to remedy.
John McDonnell
Q
My concern is this: I think you are right about the influence on Chinese students at the moment. The National Union of Students has a list of organisations that reflects Government views about terrorist organisations, and so on, that you would not wish to use any form of premises to promote their ideas. For example, in the Uyghur case, if the students through the National Union of Students or their local student body consult or even ballot and come to a view that they do not wish organisations associated with the Chinese Communist party to use their premises to promote or defend what is happening to the Uyghur people, which many now believe to be genocidal, surely there must be a mechanism in the Bill to enable that expression of view to have effect. Those sorts of meetings could intimidate Chinese students on university campuses and elsewhere.
Could the Bill could be improved by having some form of mechanism to enable that element of flexibility? The Office for Students—the director for freedom of speech—could ensure that there is a proper and effectively exercised mechanism to ensure that such consultation takes place. Therefore, we could have a range of limited exemptions where we do not wish in any way to use resources—whether student union or university resources—to enable the promotion of something that might be speculative to some, but is certainly not to some of us, which is the genocidal attack on the Uyghur people. I put the question to Trevor, as he raised it—it is a real-world issue for many of us.
Trevor Phillips: It is a really important point. I have an immense amount of sympathy with what you have just said. Were I a student today, I would without any question whatever be campaigning to have a student union decision that any facilities under the control of or paid for by—although I know they do not have union subs any more—my student union were not used in any way, however indirectly, to support the actions of the Chinese Communist party in Xinjiang. In so far as that is concerned, I am completely with you. I do not think that you need legislation for that. Every student union has a general meeting or a council that can decide that that is what it wants—
John McDonnell
Q
Trevor Phillips: I do not think that there is anything in the legislation that will force a student union to do that. What I would agree with is that it is entirely possible that a group of three students might decide that they want to do something like this on campus. I get that. I am afraid that I have to say that if that is what happens, that is what happens. The student union can say, “Well, you can’t do it on our premises”—I think that is fine.
John McDonnell
Q
Trevor Phillips: I do not think that the legislation will compel any part of a university to agree to let anybody speak on its premises. I do not think that that is the case here.
John McDonnell
Q
Trevor Phillips: I am not going to dodge your question, John. I am quite straightforward about this. The student union can say, “No, we’re not having it”, but, ultimately, if a group of individuals—academics and so on—say, “We want to have this person from the Chinese embassy speaking to explain what they are doing in Xinjiang”, I cannot in all conscience agree that it is a university’s duty somehow to prevent that happening. What I will say, coming back to my earlier point, is that, unless there was some compelling reason otherwise, such a meeting should always be open to all members of the university community so that that point of view is under challenge. In the end, that will be a more valuable pathway than simply saying, “We’re going to ban you.”
John McDonnell
Q
Trevor Phillips: If one could find the right formulation, I think that is worthwhile.
Charlotte Nichols
Q
Trevor Phillips: Point one is that I do not think one ought to value legislation by the weight of pages. I was partly responsible for the Equality Act and, before that, the Greater London Authority Act, which are two gigantic pieces of legislation. I would not say that either carried the same weight as some rather slimmer pieces of legislation.
Secondly, I think your point is, why are we bothering? The answer is that, to go back to what I said earlier, if we could depend on the university authorities to do their jobs to protect the rights of their staff and students, I would say that, on balance, you guys have better things to do. However, it has been demonstrated again and again in the last four or five years that, by and large, university authorities are abdicating that responsibility. To give you an example, Cambridge has been mentioned several times. A couple of years ago, I appeared on television. I will not bore you with what it was, but afterwards, a member of the Cambridge faculty tweeted that I was a racist. I wrote to the pro-vice-chancellor, who is responsible for discipline, and said, “Is it okay for people from Cambridge to say this kind of thing about people they do not know and have never met, and to put it all over social media?” In summary, the response I got was that the university could not really do anything to control or deal with such behaviour. I said to them that I have a relative who is a senior person in one of the Cambridge colleges; Cambridge University said that if someone were to call her a rude name in Trumpington Street in Cambridge, they could do something about that because she is a member of the university, but if they were to call my wife, who is a Cambridge graduate but not a member of the community, the same filthy word, they could not do anything about that.
My point is very simple: if the university authorities were doing their job, you would not be having this session. But they are not, and the truth is that people are losing their jobs. I come back to my point—I am sorry to reiterate it— that the spirit of intellectual inquiry, which is what makes our higher education sector attractive and successful, is essentially being trashed. That has to be stopped.
Charlotte Nichols
Q
The Chair
I am going to interrupt because we are running out of time—we have half a minute. I am going to ask Professor Biggar to say something.
Professor Biggar: Just in response to your claim that the Bill really does not make much difference: at the moment, there is no unequivocal duty on universities to secure and promote the academic freedom of their staff. The Higher Education Research Act 2017 does impose a duty to secure academic freedom, but imposes it on the Office of Students vis-à-vis universities, whereas it is about institutional autonomy. At the moment, there is no unequivocal duty on universities to secure and promote the academic freedom of staff, and that would be one single improvement over the current situation that the Bill would achieve.
The Chair
The time is 25 past and we have to close this session. Once again, it has been a really good session and we are indebted to our witnesses. I am grateful to Mr Phillips for reminding me of my student politics days, when back in 1969 I had the lead letter in The Daily Telegraph, headed “Free speech in universities”, when I criticised our university vice-chancellor for trying to prevent me from inviting a particularly prominent Conservative politician to the university. It has brought all that back to me vividly. Thank you very much.
Higher Education (Freedom of Speech) Bill (Second sitting)
(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)
Q
“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
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
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
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
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.”
Sir John Hayes
Q
Professor Whittle: Not all research, of course. Not all research is out there to alarm, to shock and to tear down the wall, but a body of research is. We have to have an opportunity to do what I would call blue-sky thinking in the humanities as much as in the sciences. My own research would have got nowhere if it had been left to the people who thought they knew how the system worked—it was completely off the wall, but it brought new ideas and presented the evidence for those changes.
There will, however, always be concerns that some students and some researchers will always want to do work that is very problematic. For example, I am thinking of a student who applied to do a PhD but never actually got his research proposal approved before he presented his dissertation. The dissertation, which looked into the far right in Europe, was basically a presentation of why we should all move to far-right politics. It was not going to go anywhere. I could not ever have signed it off, because he had not gone through the proper processes. If he had, I think he would have come up with different answers, but we will never know.
I do not say to the students who are researchers, “You shouldn’t do this,” or, “You shouldn’t do that,” but I do say, “You need to think about what it is that you are trying to achieve. Are you just trying to make a statement, or are you trying to contribute to the academic debate and to improve the world in which we live?” Some just want to make a statement. I think the research that we referred to this morning on detransitioning was exactly that—a piece of research that was preset to provide an answer that the academic wanted—whereas other research is out there to explore the issues properly.
We have academics who are reviewing research all the time. One of my primary functions is to read research papers of various forms, to make those judgments as to whether the research is sound or could be sound, and to decide whether it will receive support from me, or whatever else.
Michelle Donelan
Q
Professor Whittle: Absolutely. I absolutely believe we need to really think, particularly in terms of recruitment and promotion, how we do it. There is an insularity, particularly in promotion, within universities and between universities that prevents people who speak out, or seem to be doing something that is not common enough, getting those opportunities for promotion.
Manchester Met has been incredibly supportive of me and my work over the years, but in 27 years I have never been shortlisted for a job, which means I have never even got to the point of sitting in the chair and being interviewed. It is those things. I know I am facing the concrete ceiling in that because I am doing research that is considered to be a minority interest. I actually do not think I am. I think I am talking about core human rights and about how identity fits within that legal framework of core human rights, but the universities and university departments are incredibly cautious about taking somebody on who might be considered too challenging to a sort of mantra of “we are a safe space.”
Michelle Donelan
Q
Professor Whittle: There is different legislation. This legislation focuses specifically on how universities promote free speech, but most specifically on what they do to make sure that speakers, academics etc. speak, which means what they do to stop other people disturbing that space.
In terms of promotion, opportunities and things like that, I think it is not legislation. We need a real sea change in how universities think about the academics who work for them and what they are trying to achieve. I certainly think that the promotional system that we have, which consists of small circles of people supporting certain other small circles of people, is too narrow. We need external experts in areas, to be prepared to call people out from other disciplines to look at professorial applications, say, and to bring a range of voices to that.
I like the fact that my own university is thinking in terms of readerships not just for pure researchers, but also for people who look at the pedagogy of teaching within universities and who are interested in improving teaching quality and how we get ideas over to students. That is a start, by not just saying, “There are these ones who research and these ones who teach,” but thinking that we cross over constantly.
This piece of legislation seems to me to be unnecessary because it is about controlling the external to the university. Can a university do that? How can a university stop people protesting, although they could bring on security and bar people from campus? The whole nature of student life is to protest, or it should be, anyway. I sometimes think they don’t do it enough nowadays.
Universities already have an obligation in relation to freedom of speech. This creates an obligation on them to stop other people’s freedom of speech, and that is the problem. It will narrow freedom of speech overall. It is a fine balance, but I don’t think stopping student protests or external anger about what academics do is going to make, a, academics feel any safer or, b, improve our freedom of speech.
Michelle Donelan
Q
Professor Whittle: It does not appear to, but combined with other legislation that has come in and the whole idea of what universities can do? What can a university do to stop people saying, “We don’t want this speaker.”? Can they stop it on Twitter? No. Can they stop it on Facebook? No. But they can stop it on the ground within the space of the university. I actually think that that is a much more valid place to hear student protests than on Twitter.
Emma Hardy
Q
Professor Whittle: 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. The Bill is interesting in that you do not have to have any standing to use the potential new provisions within it. I think that that is equally problematic, because it means that literally the butcher down the road could decide that they do not want the speaker, or could make a complaint that a speaker had had their freedom of speech challenged.
I think that that is very problematic, but I accept that it should be absolutely clear in the Bill that this is not about stopping legitimate student protest. There is a difference between legitimate and illegitimate protest, and illegitimate protest is always illegitimate in my view and should never be perpetrated, except in the direst circumstances. Legitimate protest, which includes shouting, making a noise and being an irritating bloody nuisance is just part and parcel of academic life. As I say, I have faced it in my own lecture theatre and I have not felt comfortable, but I did not feel so challenged.
Emma Hardy
Q
Professor Whittle: Absolutely. Legitimate protest within universities is an absolute must. If we make it different from the rights externally, does that somehow create a different space for universities? Universities are, on the whole, still part and parcel of the public sphere—not all of them, but most of them. They do not have the same rights, for example, as a pub landlord to say, “You can’t come in here,” but they have certain levels of control on their sites. To just bar student protest, or to make it impossible, would drive protest into those online spheres, and I think it would be much worse there.
Emma Hardy
Q
Professor Whittle: Absolutely. What do we count as our field of expertise? As a lawyer, as an activist, as an individual, as a parent, my expertise is widespread, and I bring all of those things into my academic life. If you told me that I could only speak on equalities law, I would say I have just done a big presentation in relation to the European Union and rights across the European Union. Does that not include me? Can I not speak on that? When the economists have a panel on free trade, can I not come and talk about how it impacts on different people’s rights across the world? Of course I can—that is part of our conversation, and I think that most academics would say that we do not sit in little boxes. We read widely; we bring all these ideas together. If we are very lucky, one day we will become Noam Chomsky and produce a great book, but most of us will just retire.
Mr Richard Holden (North West Durham) (Con)
Q
Professor Whittle: Yes, I accept that. If we go back 15 years to people complaining about the noise in the library, I stood up and said, “Why don’t you just ask them to stop? That is what I do.” They said, “It is all very well for you. You feel brave enough to do that.” I do not feel any braver than anybody else, but I am going in the library to work and I can ask the students to be considerate and quiet and, on the whole, I get a certain amount of listening to and respect out of that. If academics do not feel that they are able to speak out, I am very sorry they feel like that, but part of me wants to say, “Pull your socks up and get on and do it, because nothing is that frightening.”
I have spoken across the world, in different places, from Moscow to China and India, in circumstances where many people would go, “Oh my God—what are you doing?” but I have always received, on the whole, respect. There has been some heckling, but I handled it and never felt that my life was in danger in any way, shape or form. I sometimes have felt that my career has ridden a little bit close to the edge, but, as I say, I accepted a long time ago that other universities were not going to interview me, so I might as well make my mark here and I think I have been able to.
Mr Holden
Q
Professor Whittle: I do not think people have not considered me for my appointments because I am outspoken. I think they have not considered me for appointments just simply because I am trans. I have no doubts that it is just because I am a transgender person and I do transgender politics and they do not want to be pigeonholed like that.
Mr Holden
Q
Professor Whittle: I have accepted that some academics feel like that. I think they are wrong to feel like that.
Mr Holden
Q
Professor Whittle: Completely. I do not think it has to be legislated; it should be in university charters almost from the beginning. As universities, we promote freedom of speech. We participate in our local and national communities and we talk about what we are doing. We are completely open and frank about the research, information and teaching that we do, and we make it widely available to the public.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
Q
I want to ask about employment practices. We know that there is an ongoing problem. We heard earlier on today that there is a problem with academics often not being given tenure, and too many people being on short-term contracts. That means they constantly think about promotion and saying the right thing rather than producing the right academic work. Is that an area that you feel could be addressed? Would that help solve some of the issues around confidence in people speaking out, rather than trying to put legal duties here and there?
Professor Whittle: Absolutely. I think there is a great deal of insecurity for younger academics, and even some older ones who have been on the short-term contract system forever and a day. We see those academics constantly losing teaching, gaining teaching, and being asked at the last minute to do stuff without any security of tenure. I think that is really problematic because people try to second-guess what they might need to do to get that security.
Within that system, there is a lot of pressure for people to do often what we might call the teaching, marking and examining duties; not enough emphasis is given to their personal development through an academic career, so they miss out on the opportunities, the time and the support—often financially, say—to go to conferences or to do research because they have not got a tenured position of some sort. That is really problematic, and it has a knock-on effect. Academics often feel disempowered. Again, they try to think, “What do I need to do that will satisfy the system, give me a chance to get some research done and make sure I provide good quality teaching?”
I work in a post-’92 university, so I am not at a university that ever gives sabbatical time, for example. I have done most of my research at weekends, holidays and things like that, so I fully understand the problem that exists within that.
Lloyd Russell-Moyle
Q
Professor Whittle: Yes. I believe that there should absolutely be an obligation on academic employers not to misuse academics, and to properly consider them for permanent posts when they are available. They should not sidestep them and get external applicants always, but they should consider them. The right to apply and be seriously considered is a really important right that academics do not have. I would really like to see some way of embodying within people’s contractual rights or legal rights a right to be considered for the post if they have done the job.
One of the things I have really found distressing across the years is to watch academics do the work, for years sometimes, apparently satisfactorily, but not get the job at the end of the day. Often they do not get the job because they do not have the research background, but they have not had the opportunity to get the research background. Nobody has even asked them what they are doing in their own time, never mind consider it. Instead, they bring in somebody from outside with a research background and a year later I discover they will not teach that subject anyhow, so we are back to ground one. It is a bit despairing. I have said for years that we really must provide more security for young academics in developing their careers, whatever their views.
The Chair
If there are no further questions from Members, I thank Professor Whittle for his evidence and we will move on to the next panel. Thank you very much, Professor Whittle, and we wish you well.
We will now hear oral evidence from Smita Jamdar, partner and head of education at Shakespeare Martineau, who is also joining us via Zoom. We have until 3.30 pm for this session.
Examination of witness
Smita Jamdar gave evidence.
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?
The Chair
I thank you for that plea for clarification. I am happy for any Member to make a declaration at the beginning of each session, as making a declaration every time they speak seems excessive.
Matt Western
Q
“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
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
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
“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.
Emma Hardy
Yes—sorry.
Smita Jamdar: I may have misunderstood; I do apologise. Yes, that is a concern. Built into certain types of court proceedings—judicial review, for example—is the expectation that you will first exhaust all alternative remedies, and that would include any internal remedies available under the complaints process. However, that is not the case in statutory torts; you could bring a claim outside the processes and the only thing that would then stand in your way is this—sometimes very vigorously encouraged—preference not to proceed with the court process but to go through the internal complaints process. However, you would still have issued and there would still need to be some reaction to that claim.
Emma Hardy
Q
Smita Jamdar: Absolutely.
Michelle Donelan
Q
Smita Jamdar: The main route that you would see a student, for example, going through would be by way of judicial review. Judicial review has the advantage of allowing the court to make a declaration or requirement that the university should reconsider the case and, if necessary, readmit the student—they are entitled to go as far as that, but very often they will keep it to requiring that the case be reconsidered. They can also concurrently award damages, if you can prove that there is a loss associated with whatever has happened to you.
Our view, as a firm, is that if you had a situation where a student was excluded on the basis of exercising their right to freedom of speech, and it was a rightful exercise of the freedom and a wrongful interference with the freedom, then the clause permitting you to do that might also be regarded as a unfair term under the consumer contracts legislation, because you are losing a right that you have as a matter of general law. So routes are available. It is fair to say that the vast majority of these cases are probably dealt with at the internal appeals stage; I am not aware of a huge amount of case law that relates to students pursuing their claim. I think for academics it would be via employment tribunals.
Michelle Donelan
Q
Smita Jamdar: There are two answers to that, Minister: the first is that when we talk about the range of complaints that people are bringing under the overarching ambit of freedom of speech, they do reflect quite different circumstances. They might be people who feel that they have not been allowed to speak at an event; they might be people who feel that they have expressed views on social media and have then been disciplined for that; they might be people who feel that they have not had a promotion, or have been subject to a detriment, in their employment context. Judicial review would not necessarily be the right route for all those.
Is judicial review expensive? In comparison with the kind of litigation you could get into if you are dealing with a statutory tort—where there are days of witnesses giving evidence, assuming it goes all the way to trial—judicial review is not expensive. Civil proceedings of this nature can be far more expensive because they are so oral evidence and fact driven. That said, currently, if a student was unhappy with an internal process of a university they could also go to the Office of the Independent Adjudicator—they have got that route. The OIA would look at that because they can look at any act or omission on the part of a university. I do not know who you have spoken to about this, but I have not seen via the OIA’s own case studies many examples of people raising issues around free speech through them. That does make me wonder why that is not happening because that is a free and perfectly acceptable route through which to bring the kind of issues that people might wish to complain about.
Michelle Donelan
Q
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
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
“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.
John McDonnell
Q
Smita Jamdar: I do not know if I can answer whether it is common or not; I am not a defamation expert. From memory, there is something similar in relation to the OIA under the Higher Education Act 2004. If it is okay, I will check that after this and let you know in writing. If it exists, that would be the only place that I have seen it before.
John McDonnell
Q
Smita Jamdar: Again, that is something I would have to try and work through in my mind. If it is okay with you, I will give a written response to that.
Fiona Bruce (Congleton) (Con)
Q
Smita Jamdar: The phrase “reasonable practicability” is quite a common one used in legislation—another example of it would be in health and safety legislation—and what it recognises is that it is very difficult for somebody to ensure that something happens without any caveat, because clearly there will be things that you have no control over that are preventing freedom of speech happening. In this case, if we go back to the self-censorship point, you may not know that people are self-censoring, so how do you address that?
Reasonable practicability is actually quite a high legal threshold. It is beyond what is reasonable, for example: it is saying, “If this is something that is practically possible, then subject to a general sense of, say, cost-benefit analysis, you would be expected to do it.” It starts from that quite high threshold; it sounds like a low threshold, but actually it is not necessarily a low threshold and in this case it is enhanced by the fact that what is reasonably practicable will have to be determined by reference to the particular importance of freedom of speech. It is highlighting freedom of speech as something that is of itself important—so, having particular regard to the importance of free speech, steps that are reasonably practicable to take. I think it is strengthening the current position.
In relation to the evidence you heard this morning—I did not hear all of it, but I heard some—I would go back to the point that I made earlier, which is that I am not convinced that even this duty would necessarily address some of the things that people are talking about, because I am not convinced those things are best addressed by legislation, or capable of being adequately addressed by legislation. That would be my view.
Fiona Bruce
Q
Smita Jamdar: Again, the question of why you would use that formulation is not something I know the answer to. My instinctive reaction to that is that something can be practicable but not necessary, as in not solely necessary—so, there are things that you could do that go beyond strictly what is necessary. They could enhance, for example, rather than just achieve the bare minimum. My instinctive reaction is that “reasonably necessary” is a lower threshold than practicability.
Fiona Bruce
That is very interesting.
Smita Jamdar: I know. I may not be right about that, so I would have to look at the legislation.
Fiona Bruce
I think the Committee would be very interested—I certainly would be—in any further thoughts you have on that, because I do have a concern that we are not raising the bar sufficiently high, bearing in mind that we have had 30 years of the same bar and we have some major problems that appear to have been escalating over that period. Your thoughts on that would be much appreciated.
Smita Jamdar: I will definitely do that, because it is not something I have thought about before, so that was very much a “reacting on my feet”-type response.
Lloyd Russell-Moyle
Q
Is there a danger that this provides a chilling effect for trustees, such as myself and others across the country, to allow students to exercise their full autonomy? For example, what I mean is that we have the Conservative society, the Labour society and so on, which are all autonomous in their organisation within the student union, affiliating to the student union. Is there a danger that if one of them suddenly decided that they did not want a speaker to come along, we would then have liability for those students’ autonomous actions?
Smita Jamdar: The answer to that has to be potentially, yes. It would very much depend on what the relationship between the group in question and the student union was: whether it was a formal society of the student union, or a more informal gathering. This morning I heard a suggestion that student unions could make a decision at an institutional level about certain events, but then the individuals would still be free to go to the university and say, “We want to hold this event even though the student union has not allowed us to.”
On the face of it, because the duty is to secure freedom of speech within the law for students, rather than societies as a whole, you could find that you were caught between what was essentially an internal dispute on the part of a society about whether a particular speaker was or was not welcome to speak at that society. I know that purists would say, “If one person wants this person to speak, we should allow it.” But there are resource issues for student societies and rules about their own internal operation about how decisions are made. I do not think the legislation recognises that nuance. All that would happen would be that, yes, the complaint would potentially land at the feet of the trustees, who would then have to adjudicate on it.
Lloyd Russell-Moyle
Q
The University of Sussex, which I am involved with, and the University of Brighton have a joint medical school, so many of our student societies are joint ones at both institutions and their respective student unions—they are one body, but they affiliate to both. Where is the liability in those complex situations, which would also come about with federated universities in London and elsewhere? Would everyone be liable? Would they have to follow each institution’s rules, which might be slightly different?
Smita Jamdar: I am going to give a slightly lawyerly answer. If it got to court, the starting point would be to understand the matrix of relationships and to try to identify who was ultimately the decision maker in the case. But in practice if you are in a claimant situation, unless there are really obvious reasons not to bring a complaint against a particular student union or organisation, you will include everybody to begin with. You want to have your net cast as wide as possible; then it gets filtered down either because you have received your own legal advice that some of those are not tenable or ultimately you go to court and the court concludes that some are just not relevant parties.
Lloyd Russell-Moyle
Q
Smita Jamdar: We should all take it for granted that any of this is going to be quite expensive. There is not a way round that. These cases are likely to require legal advice; it is going to be hard for individuals to just pursue the claims themselves. The bodies resisting will undoubtedly want legal advice and, as I said earlier, once you start a process of litigation it is sometimes hard to extricate yourself from it very easily.
Lloyd Russell-Moyle
Q
Smita Jamdar: Absolutely. It only applies to universities and student unions as defined, so it would not apply to the Oxford Union or the Cambridge equivalent.
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.
Lloyd Russell-Moyle
Q
Smita Jamdar: Only if the speaker fell within the definition of “visiting speakers”—the problem here is that there is an absence of a definition. If you read “visiting speakers” in the context of the preceding subsections, you would clearly read it to mean people invited by staff of the provider, a member of the provider or students of the provider, rather than an external organisation that is using the premises.
Lloyd Russell-Moyle
Q
Smita Jamdar: It does become very complex. The more you move away from the big obvious case of somebody being denied the right to do the research they want to do or somebody not being able to speak or teach about something they want to, all those complexities really do become quite challenging from a legal perspective, but we can see that they may well materialise.
Lloyd Russell-Moyle
Q
Smita Jamdar: Again, people have highlighted the fact that in some ways, what the Bill is doing is narrowing what limited existing protection there is for academic freedoms—that is being narrowed. Currently, academic freedom is protected largely through the constitutional documents of universities. Chartered universities—those with royal charters—have to have a provision in their charters, and the post-92s have a provision in their instruments and articles of government. Those do not currently restrict academic freedom to matters within the expertise of the academic, and I know from speaking to employment law colleagues—one of the other things I am not an expert in is employment law—that there are often cases where there is a very vigorous disagreement about whether something was an exercise of academic freedom or not when it relates to criticism of the institution.
I think that the Bill makes it clearer, but probably, from the point of view of those who feel that academic freedom is inadequately protected, it is clearer by narrowing it rather than by addressing any of those wider concerns.
Emma Hardy
Q
Smita Jamdar: Absolutely. As I alluded to earlier, my concern about having a stop at the OfS is that that individual may be required to interpret law, so they may well be required to decide if something is defamatory, harassment, contrary to the Equality Act or potentially a public order offence. I find the idea that those legal judgments cannot then be appealed to the people who are actually able to make legal judgments really quite worrying.
Certainly, if that were to be the case, the process for appointing that individual, and the statutory requirements that must be observed for that individual in their role, need to be much tighter, because you could end up with somebody who is effectively an appointment of whatever Government is in place at the time, and who does not necessarily have any skills or expertise to make those judgments but is the last word on them. Again, in terms of freedom, that does not feel terribly free.
Emma Hardy
Q
On the OfS director, earlier we heard evidence that they would be giving guidance to universities and that their role would be in providing that guidance. Can you foresee a situation where a university follows the guidance by the OfS director of the day, the OfS director is changed, and the university is then told that the guidance it followed under the previous administration is no longer correct and it is liable for breaking the law under the Freedom of Speech Act? Do you see that there could be a difficulty with the OfS director being both the judge and the person giving the guidance?
Smita Jamdar: That is always a situation with potential for conflict, because how can you then judge impartially the complaint that comes in, even if it is another part of the organisation that is submitting it? Under the Bill, it would be within the oversight of the director, so there is definitely a problem there. Until quite recently I would have been confident that, as a matter of rule of law, you could not retrospectively apply conditions in that way. However, I am less confident about that than I have been in the past.
I think there are regulatory trends that say that people do sometimes try and retrospectively shift the goalposts. Normally, you would then potentially be able to go for judicial review, and say that this is a decision that is in breach of public law principles, either because it is irrational or in some way procedurally flawed. However, under the Bill you would not have that right because you cannot challenge the decisions of the free speech champions. Bearing in mind that we have to look at the worst-case scenarios, it is possible that, through change of policy, a piece of guidance that was given and followed is now no longer considered to be adequate.
Emma Hardy
Q
Smita Jamdar: I would have thought that one of the most useful things the OfS could do is give the guidance, and look at this through its regulatory lens. Having seen how regulation has started to change behaviour at universities in other cases, that might be where we see most of the cultural change we all feel is at the root of this.
The two obvious things that would change the position would be to build in additional safeguards, so that the freedom of speech complaints process is dealt with separately to the guidance. However, that then calls into question the role of the director—it is quite a fundamental shift. Another thing you could think about is saying that if the challenge is about the lawfulness of the speech, rather than some other breach of process, then that has to first go to court before the OfS can adjudicate on it. Then, at least, legal issues are dealt with by someone else—they are not dealt with by the OfS. The final thing would be to introduce a level of judicial oversight into what is happening, so that any particularly difficult and egregious cases could go to court and say that the OfS has not done its job in the way that Parliament intended.
Emma Hardy
Q
Smita Jamdar: I would definitely say that the OfS director should have a legal background because there is so much law in here to get your head around. My preference would be to say that that person is not allowed to make legal decisions—even if they have a legal background. It just strikes me as conceptually a very difficult idea; somebody who is not a court and not a tribunal making legal decisions. That should not happen. I would go one step further and say take that out of the role.
In terms of understanding the higher education sector, I know that there is always a concern that if you bring in people who are too familiar with the sector then they will not be impartial about these issues. However, everybody in the sector recognises the importance of free speech. The problem is that there are a small number of areas that are highly contested, where different people have different views about what free speech should be. I do not think knowledge of the sector would prevent someone from being able to judge those things impartially. In fact, it might help, because it would speed up understanding the context where this is all taking place.
The Chair
If there are no further questions from Members, I thank Ms Jamdar for her evidence, and we will move on to the next panel.
Examination of Witness
Thomas Simpson gave evidence.
The Chair
Q
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
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
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
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
Thomas Simpson: Our study really bore out figures that were consistent with the international picture.
Matt Western
Q
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
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
“‘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—
Lloyd Russell-Moyle
Q
Thomas Simpson: Right. So my view is that there is a really obvious coalition here of those who are concerned with the long-term health of the sector, to make it a place where tolerance of different viewpoints exists. I think that is very helpful.
There was the final point, on the role of the employment tribunal. One of the important issues here is that this is a multi-strand approach, so I do not think it is necessarily “not this, but that”. However, I think there is a very serious question, which lawyers would be better placed to comment on than me, about whether employment tribunals should be a first port of call in cases of dismissal, for instance.
Michelle Donelan
Q
Thomas Simpson: The main threat is the chilling effect.
Michelle Donelan
Q
Thomas Simpson: It provides the best means that we have got of addressing it. Whether it will succeed or not, I do not know. We have evidence—I gave you the example earlier of the Equalities Act. The test for the success of this Bill is not what happens in the six months afterwards—whether there are controversies, what happens afterwards. The test for success is in 10 years’ time, when it is more embedded.
Michelle Donelan
Q
Thomas Simpson: I think they underestimate the power of law to shape culture. This is a cultural issue within the sector, but I think the law will influence how that culture evolves over time.
Michelle Donelan
Q
Thomas Simpson: As I read the Bill, and certainly I suppose in my vision, the director plays a co-ordinating role for the OfS’s functions, but the director’s decisions should not be decisions that the director makes individually; they are decisions that the board would sign off on. As I have discussed earlier, I think there is a legal recourse for testing what the director’s decision should be. But the director should be someone who is active, who is energetic and who wants to drive this.
One of the other questions here at stake—it is one of the missing pieces from prior evidence—is that we have a very valuable document from 2019, the Equality and Human Rights Commission’s guidance on free expression. That really carefully walks through very practical details of how the section 43 freedom of speech duty should be implemented in particular situations. Ten key public bodies were brought in to agree to that guidance. There is both a process and an end point that is similar to that for the wider question of academic freedom that the Bill sets out provision for.
There is an outstanding question, which people are right to ask: what is the relationship between this and the Equality Act? In practice, the EHRC guidance threads the needle on most of those issues, and there will be a comparable process for academic freedom more widely.
Emma Hardy
Q
Thomas Simpson: In the ideal world, that would be great. I do not know what the appetite is within the House of Commons for pressing on that, but I think it would be valuable, were it possible. The EHRC guidance generated considerable consent on how that relationship should be managed in practice. As an advocate of academic freedom and free speech, I think it does so in a way that is respectful of both the demands of the Equality Act, right and proper, and those of academic freedom.
Emma Hardy
Q
Thomas Simpson: In my view, the greatest challenge is awareness within the sector of what the Equality Act requires and, particularly, what it does not require. That is something that the EHRC guidance does a really good job on. I would leave it to the legal people to say whether that should be in the Bill, but it seems to me that the question of how to adjudicate that has already been quite carefully thought through.
One of the areas of extension that has not had the same consideration, and one of the shortfalls of the guidance—this is not a criticism of it, because it fulfils its purpose—is its scope. It focuses only on the section 43 duty as was. There is a wider set of questions about academic freedom, and freedom of teaching in particular, that it does not address.
Emma Hardy
Q
Thomas Simpson: That is not an issue that I have considered previously.
Emma Hardy
Q
Thomas Simpson: Pass—that is a very wide question. I certainly envisage that part of what will be involved in fulfilling the duty to promote academic freedom would be something like holding and convening events for freshers to think about how a university functions, and what it looks like to promote a place of free debate. My understanding is that it has proven very difficult through direct unconscious bias training to unpick that, but someone who is better versed in the evidence could speak to that.
Emma Hardy
Q
Thomas Simpson: Whereas 30 years ago you might have had a situation where in a small business people said, “We don’t want to employ X because maybe she’ll be pregnant in six months’ time”, people now would rightly be very cautious about saying that, and ought to be, and they ought not to believe it. The fact that we have come to that position is in part due to anti-discrimination legislation, which has helped bring to people’s minds the dangers of thinking in that way.
One of the challenges that we need to think through in the sector is avoiding the risk of partisan thinking, because such thinking, whatever partisan tribe you are sucked into, generates the possibility of seeing people as indicative of a particular tribe that you might not like. Over time, that norm should embed itself. That is the view and the vision.
Emma Hardy
Q
Thomas Simpson: No, it provides for the means by which that would happen. The functions of the director of free speech are to identify good practice and give advice on how that will take place. I think the vision is that the advice on what that good practice is would be what is required to fulfil the A3 statutory duty to promote academic freedom. Universities that are taking that advice would then start to implement that form of training, whatever it is.
Emma Hardy
Q
Thomas Simpson: I think the crucial thing is that the legislation puts it within the OfS’s remit. It mandates that this should be within its remit. I think it was already within its remit beforehand; it just was not being carried out.
Fiona Bruce (Congleton) (Con)
Q
Thomas Simpson: One of the really urgent amendments to the Bill, in my view, relates to the opening duty, what you might call the source duty, in clause 1. The point has already been made, and I think that there is some truth to it, that the Bill changes the emphasis of the statutory duty—I do not think intentionally. If we look at the detail, it states:
“The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom speech, are reasonably practicable for it to take”.
I just want to focus on the governing body issue. It focuses the statutory tort from which everything else follows— the statutory duties—on the steps that the governing body must take rather than on the way that constituent parts of the university conduct themselves.
Let me just put that in concrete terms. Suppose there is a case in which someone is not appointed because they are judged to have the wrong view on whatever issue, and they wish to test this and they have evidence that makes them think that is the case. What that person wants to do is test in the courts, “Did I not get the job because of my view?” That is what they want to test. What the statutory duty implies is that the courts will ask, “Did the governing body take the steps that were required to stop that happening?” Okay. That is a very, very different thing. Testing that is asking, “Have they had a discussion on the governing body of which there are minutes to record this happened? Did they put the right training in place? Did they appoint the right people? Is there some error that they have made?” What wants to be tested is whether the individual was treated unfairly in some sort of way.
Sending in the report, we advocated for a direct duty to be placed on higher education providers and not on the governing body of it to take steps. That is a really vital measure.
Fiona Bruce
Q
“objective is securing freedom of speech within the law”.
Is there some merit in considering an amendment so that it reads, “the objective is securing freedom of speech without unlawful interference”? That would focus the minds of those who are assessing the situation on whether the interference has been unlawful, as opposed to whether the speech is within the law or not, which brings into play all the complexities about the interpretation of what is within the law and is not, in terms of harassment and so forth.
Thomas Simpson: I would need to think more carefully about the specific wording that is at stake there. Perhaps I can come back on that, because another really important question is raised by clause 2: the coverage of the duty. 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—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. Many of the specific controversies are about people not losing their jobs, because part of the charter of the university prevents that from happening or makes it very difficult for it to happen. But honorific positions lead to people being dropped like a hot potato.
Fiona Bruce
Q
“Duty to promote the importance of freedom of speech and academic freedom.”
It talks about promoting academic freedom for academic staff, and what you call affiliated academics could probably be included. What about academic freedom for students?
Thomas Simpson: That is a very good question. One of the possibilities that exist, and that I would commend for revision of the Bill, is to think about a wider definition of academic freedom. In the English law context, we talk about the duty to protect freedom of speech in section 43 of the Education (No. 2) Act 1986, and the Education Reform Act 1988, which prevents dismissal. The much longer discussion of academic freedom tends to associate a number of other activities with it. Freedom as to how you teach would be a classic component of academic freedom—your freedom not to have your curriculum dictated to you as a teacher—as would your freedom to criticise your own institutions. The case law of the European Court of Human Rights has established that, and it goes back to UNESCO’s 1997 definition and prior cases.
The ability to publish and disseminate the results as you see fit is another activity that would classically be viewed as part of academic freedom. Currently, the Bill does not provide any specific protection for that, so a valuable addition to the Bill would be to expand the definition of academic freedom to include those kinds of activities. The wording for that needs to be carefully thought through, because this would be an innovation in terms of the recent history of legislation in the UK, but I think that would be a really valuable function for it.
Fiona Bruce
That was my next question, so thank you for answering it in advance.
The Chair
Four more Members have indicated that they want to ask a question. I call Kevan Jones.
Mr Jones
Q
Perhaps I am old-fashioned, because I do not believe that the state should intervene where it is not necessary. That is why I find the Bill, which comes from the Conservative party, very interesting. I am someone who believes that, with guidance—I am not suggesting that the existing guidance should not be used—academic institutions should be allowed to police themselves. Apart from Policy Exchange wanting to do a paper, and the examples that you have picked up, what is the extent of the problem? No one has been able to explain it to me. The Minister did not explain it on Second Reading, and you have not done so either. What is it?
Thomas Simpson: One of the things that really strikes me is often overlooked in this debate is the structural similarity between discussions around free speech and discussions around other forms of discrimination. We have rightly been thinking very seriously about racial discrimination in the past year and a half in particular, and one of the features of that debate is that people who may not themselves be subject to discrimination on those grounds are often cautious or outright sceptical that there is a problem here, whereas those who are subject to it, or at risk of being subject to it, are often very clear that there is a problem here. There is an asymmetry of perspectives.
Mr Jones
Q
Thomas Simpson: There are two problems. One is that existing statutory duties have very weak means of enforcement, so my view is that those gaps should be plugged. Two of the controversies in Cambridge in 2019 were around the dismissal of Noah Carl and its rescinding of the visiting fellowship invitation to Professor Jordan Peterson. Regardless of the merits of either case—I do not know the details of them—the astonishing thing about that was the lack of due process. The university in one case, and the college in the other case, made the decision, and there was nothing that the people involved could do, or very little that they could do: there were not ready legal means. There needs to be legal remedy.
Actually, one of the really surprising things about this discussion is that it is not an argument against taking measures, specifically in the human rights case, to guard against human rights being breached. You do not need to show that there are lots of patterns of human rights being breached.
Mr Jones
Q
Thomas Simpson: Exactly the same charges were made against the original passage of anti-discrimination legislation.
Mr Jones
Q
The issue I have with this is that, with a Conservative Government, shouldn’t we be upholding the freedoms of universities to decide what they want to do within the legal framework that is there, rather than what this is? It is going to put the director in a position whereby they will be able to dictate terms. Now, that might be okay when you have a Conservative Government, but what happens if you have a radical Government of a different persuasion that then starts saying to universities, “You will do x, y and z”? That is why I find it very difficult to understand the reasons why Conservatives are backing this piece of legislation, because interventions on that level are not what it says on the tin of conservatism.
Thomas Simpson: The legislation does define it. It says that one of the objectives is
“securing that, where a person applies”
for a given job,
“the person is not adversely affected in relation to the application because they have exercised their freedom within the law”,
referring to an earlier clause.
Mr Jones
Q
Thomas Simpson: The current situation is one in which universities mark their own homework about whether they have complied with the duty.
Mr Jones
Q
Thomas Simpson: What this creates is an ecosystem of accountability, both within the sector and external to it.
Sir John Hayes
Q
Thomas Simpson: I can give my personal experience. I am cautious about drawing too strong conclusions from that. My personal experience was that as an undergraduate from 1999 to 2002, I felt free to argue a position in my final year dissertation that I knew my markers would reject, but would recognise the quality of the work on its own merits. I had the confidence to do that. The topic was whether God existed, broadly speaking. Cambridge was a very secular faculty at that time; I was examining a recent contribution to that debate.
I had a moment about three years ago where an undergraduate student in a different department from where I work was talking to me about their political philosophy paper. They had written all the ethics of migration, which is a sensitive subject. The philosophical debate is whether countries have the right to control who crosses the borders into their country. The two positions are what is called open and closed borders. The philosophical debate is already right on the edge of the Overton window for public discourse on that topic. It became clear in the conversation that the student’s personal views were in favour of closed borders, so I said, “What did you argue for in the essay?” The student replied, “Oh, I argued for open borders. It would be silly not to do that, because that is where the lecturers were coming from.”
That to me had a sense of tragedy: here was an individual who believes something different and thought they had arguments for that, but felt that the grade they would receive on the exam would be different because of the content of what they argued for. That sense of danger about particular viewpoints is something I have sensed grow within the university over the last five or six years. I think it roughly tracks some of the turmoil we have had in the public space more generally in that time. It is mitigating somewhat now, but the patterns are in place and we need to take steps to counter that.
Sir John Hayes
Q
Thomas Simpson: I have been really inspired by the observation that Scalia and RBG, the two SCOTUS justices, used to go to the opera together. They were ideological opposites and I am sure that they even viewed the other person’s views as reprehensible at times, but there was a collegiality about their ability to do their work together. That collegiality exists in very many places, but it is under pressure, and that is the challenge that we are facing.
Sir John Hayes
Perhaps a way of resolving the difference of view between the right hon. Member for North Durham and the witness is for the witness to cite some of that evidence in writing as a follow up? I would like to know about courses that have been cancelled, stopped or never delivered, speakers who have not been invited or where invitations have been withdrawn, and funding that has not been granted on the basis of all of those things being “unacceptable”. It would be very useful if you could provide some kind of note with that as a follow up, which will hopefully allow us to move on.
Gareth Bacon (Orpington) (Con)
Q
Thomas Simpson: In my view, the past five years have been particularly difficult. I think it is a longer-running trend and probably stretches back to early 2010s. I was out of academia for a key period during the early 2000s. I do not know where the data is on that. If I may come back on the data question, Professor Eric Kaufmann is in a much better position on that, as that is his speciality, whereas I am the philosopher here, so he would be well placed to speak to about those challenges.
Gareth Bacon
Q
Thomas Simpson: At the moment, the crucial question is the position of those involved in university leadership and administration. At the moment, if someone says something controversial, even reprehensible, a group of people on social media organise a campaign against the person, but for a university administration making a decision on whether to allow the event to go ahead, whether to rescind availability of premises, whether to allow this person to stay in post or whatever it is, their incentives are, “I am concerned for the reputation of the institution and what I am seeing is a lot of outrage on social media; that is what I am seeing.” The incentives are to give way to that and that is what we have seen. That is the presenting issue in these high-profile controversies.
What we need is to change the incentive structure for individuals in that, and not just change the incentive structure but affirm through legislation and through, as it were, the public speech of Parliament that academic freedom matters. When this happens, it will allow people to hide behind the legal duty. The conversation is such now that even speaking in favour of academic freedom makes one liable to accusations of being a reprehensible person and what a horrid attitude it is that you are hiding. Even universities feel that pressure, I think. The danger is that we just carry on in the current trajectory, which is that events do not go ahead and people hold their tongue. Our research environment and the hurly-burly of debate on campus just becomes not a hurly-burly, but one in which there is a prevailing viewpoint.
Gareth Bacon
It seems to me that what you are describing the difference between mob rule and the rule of law.
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
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
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
Dr Harris: The prices, do you mean?
Matt Western
Q
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
Dr Harris: That is correct, yes. We also have a discount fee for students and those on benefits.
Matt Western
Q
Dr Harris: You already have free speech—you are an MP. You are protected.
Matt Western
Q
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
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
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
Dr Harris: On the definition question, I heard your questions to Professor Simpson. All rights are difficult to define, but that does not mean therefore that we are at a loss. I think the court in Strasbourg, and certainly the US courts, would disagree that freedom of speech is something that is impossible to define. I do not think the idea that we will sort of give up or backslide because it is difficult to define a fundamental right is a serious position. Yes, it is much more difficult to define than pregnancy, which is famously binary—you are either pregnant or you are not—but nevertheless, courts and legislatures are able to define more closely what a right should be.
Mr Jones
Q
Dr Harris: To go back to the point about the intervention by the state, I think it is important that we are clear what we mean by “the state”. There is obviously a role for the OfS—an administrative form of adjudication—and perhaps we can come back to that, as I think it is a very relevant issue. It is entirely in keeping with any right that it is enforced by law and that there is a remedy when there is infringement of that right. That is simply what a right is. There are a number of people who are saying, “I believe in free speech as a right,” and then they baulk when we say that it must be enforced by the courts and there must be a remedy. That suggests to me that they do not take free speech seriously as a right, which as I say, is not a credible position in a liberal democracy.
Mr Jones
Q
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
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.
Michelle Donelan
Q
Dr Harris: Again, the question is how much of a risk are we willing to take? I think there is some truth in that, and going back to the previous question, it seems to me likely that there has been a tail-off in speaker cancellations, and many people on Second Reading brought up that fact. It is very possible as well—I can only speculate—that it is probably the negative press attention that cancellations attract that has led to that downturn. So you may say that is an example of a good result without legislation.
I think the problem is that, given the importance of what is at stake here—not just protecting people who stand to be bullied and have their lives made miserable, but also looking at a value that is pretty much integral to universities as public bodies and to their function and their value—it seems to be rather remiss to say that we will entrust those things to, essentially, unreliable mechanisms—“As long as The Telegraph keeps on publishing these stories, we know the universities will keep on the straight and narrow.” I do not think that is an adequate safeguard. I think it is absolutely the job of Parliament to say that public bodies must protect fundamental rights and deliver the value that is central to their public function. That is not simply a good thing; I think it would be odd if Parliament did not.
Michelle Donelan
Q
Dr Harris: To give an example, one of our members is Dr Abhijit Sarkar, a scholar of Indian political history at the University of Oxford. He specialises in research into far-right Indian politics, or so-called Hindutva. He posted on Instagram about the president-elect of the students’ union. He alleged that she herself was a Hindutva, a far-right Hindu nationalist. He backed it up with the fruits of his research and pointed out the various signs and tell-tales of codes that British people like me would not pick up on. It is sort of like what Searchlight do in pointing out the signs of the far right.
There was an extreme campaign against Dr Sarkar, and I have some details of the threats made against him, which have gone to the university. They include: “You die with your spine broken”, “You and your subhuman kin need to be culled and wiped from the subcontinent” and, “I request to start a campaign to bring that bastard to India” In response, the university disciplined Dr Sarkar and called him in for investigation. I cannot, and Dr Sarkar cannot say, what the outcome of that was. What is telling for me is that this was a situation where an academic was really fulfilling a public watchdog role. He was telling people that these were the tell-tale signs of far-right nationalism. When his life was threatened, the university still could not bring itself to take his side. They could not stand behind him and say, “We are with you and we support your academic freedom.”
That, I suspect, is a major part of the trauma that is caused by this. It is this feeling of isolation—that there is no one who has got my back. We see that with the gender critical feminists. There is a member whose mental health has been destroyed—I cannot mention her name. There was a campaign of harassment against her and it was brought to the attention of the university. Nothing happened and she was managed out in a sham redundancy. This is the effect. What has come before us—the cases we have dealt with—are not exhaustive; I suspect they are representative of a wider phenomenon, and I think it is too much already.
Fiona Bruce
Q
Dr Harris: It is difficult to say, and that is the problem. The Government and their lawyers have perhaps missed some opportunities to bring greater clarity and perhaps have not been as ambitious as they could have. “Reasonably practicable” steps largely replicates the wording of the 1986 duty. The problem is that in that interim there have been very few cases where the courts have considered the meaning of that. One ambiguity is if a court were asked to consider what “reasonably practicable” steps means. There is a possibility that they would say it is pretty much for the university’s discretion to decide what is reasonably practicable, and the court will simply insist that it not be irrational—that it not be Wednesbury irrational. That is a very low standard of irrationality. It is: “Don’t be completely unreasonable.” In the light of that, it is disappointing that there has not been more to state what that means.
Another ambiguity is that obviously since 1986 the Human Rights Act has become law, which means that this duty now sits alongside the section 6 duty of the Human Rights Act that a university must not act incompatibly with the article 10 right to freedom of speech, so I think that there is a bit of a missed opportunity to say how the two duties sit alongside each other. Do they essentially mean the same thing or does the Bill superimpose a positive duty—the Human Rights Act says that you must refrain from incompatible acts, and then the Bill says further that you must positively take steps to secure freedom of speech?
That is one potential interpretation, so I think my answer is that there is too much pot luck in this. There is too much hoping that when the courts get around to asking what this means they will tell us. I think Parliament should decide what it wants to do and say it, rather than leave a gap to be filled by the courts. Saying “all necessary steps such as are reasonable to secure freedom of speech” would be a very clear way of at least achieving clarity. Some may disagree, but it has the benefit of being a clearly defined duty.
Fiona Bruce
Q
The Chair
Dr Harris, may I remind you to keep your answers brief?
Dr Harris: Sorry. Yes, correct—that is possibly how it might be interpreted. This has been litigated in the case of Ben-Dor, where it is perhaps contestable whether the court was right to say that the amount that it would have cost was an unreasonable amount. 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.
Fiona Bruce
Q
“believe Parliament should decide, in this Bill, how this conflict is to be resolved”—
the conflict being that between whether provocative speech is free within the law or conduct having the effect of harassment. Can you clarify that, because this is a really complex but very important issue in our deliberations on the Bill?
Dr Harris: I will be as succinct as I can. Opponents and supporters of the Bill can hopefully find agreement that it potentially puts VCs and universities in a very difficult position. It will create borderline cases where it is difficult for the university to know whether in allowing an event to go ahead they may open themselves up to liability for harassment. It may be harassment of employees, for instance. Alternatively, if they decide that it is not quite harassment, could they then be sued because they failed to secure freedom of speech?
This is the result of the duty being essentially parasitic. It says that you must secure free speech as the law defines it. The Bill does not amplify or further define the right to free speech. I think that there is a conflict there. I do not think that it is fair to just lumber it on universities. I think there is a danger of universities responding by being completely risk averse—becoming simply anodyne—and I think it is for MPs to show some thought leadership. We have these two incommensurate values: the prevention of offence related to protected characteristics and protection of free speech, and I think it is for MPs to decide how we reconcile those two values. I do not think we should outsource the decision to universities.
Emma Hardy
Q
Dr Harris: I think that there are a number of options. In the Bill at the moment, the OfS has the power to issue advice. However, as you say, there is nothing equivalent to the Counter-terrorism and Security Act 2015, whereby the university will be under a statutory duty to give due regard to that advice.
There are a number of options. One would be that there be new guidance, perhaps from the OfS and the Equality and Human Rights Commission, setting out clearly the scope of the Equality Act, when it is not a justifiable grounds for infringing free speech, and the true extent of a university’s liability—for instance, like the fact that universities are not liable under the Equality Act for what their students do. That is quite important. That is a good, soft way of doing it, but the potential drawback of that is that the Equality Act is already fairly clear in its definition of harassment in section 26, in that it has this safeguard of
“whether it is reasonable for the conduct to have that effect.”.
What we are seeing in relation to reporting websites where students can report harassment—it was seen at the University of Essex, regarding Rosa Freedman and Jo Phoenix—
Emma Hardy
Q
With your comments acknowledging these competing obligations, my question to you is more, as a lawyer, how can that be remedied in the Bill? Could there be a concern over primacy with new case law existing outside universities, and what an OfS decision is, in terms of interpretation of the Equality Act and interpretation of this?
Dr Harris: The Equality Act is already is there by virtue of “within the law”, so it does not need to be explicitly stated. A university will have no duty to secure the right to harass someone, and it will not be in breach of the Bill if it censures an academic for discrimination or harassment. That is already there, in the Act. I am saying that one way to resolve the potential conflict that we were talking about, between the Equality Act and this Bill, would be to have guidance to help universities navigate this very fine line.
That is one way of doing it. The other is for Parliament to re-clarify the definition of harassment with relation to universities. I accept that getting into the Equality Act is very controversial and tricky terrain, but the explanatory notes of the 2010 Act, as enacted, quite clearly say that in making findings of harassment, courts should take into account academic freedom. I think there is a lot that can be done that would not substantially change the Equality Act, but that would clarify how it applies in the academic context.
Emma Hardy
Q
“absent further clarity in the Bill, this would be an untested assumption, and an HEI/SU relying upon this assumption may carry a greater risk of being exposed to a free speech challenge”.
They were requesting that clarity in the law, so your comment is interesting.
Dr Harris: Universities often go beyond what the Equality Act—
Emma Hardy
Because they have the Prevent legislation and much other non-statutory legislation that they are expected to follow.
Dr Harris: That is correct. I have not yet seen evidence of over-application of the Prevent duty—at least I have not seen it, and certainly one sees more of that in schools—but, first, universities need to agree on what the Equality Act actually requires of them. They need to—
Emma Hardy
Sorry, it is not just the Equality Act. Universities are expected to follow a number of statutory measures and non-statutory guidance. My concern with that—one shared by a number of people—is that it could have a chilling effect, with universities being risk averse.
Dr Harris: There will be a balance of competing obligations. That will always happen. One thing that I would certainly say is that, realistically, the risk in most cases will be quite low. Universities are not really dangerous places. It is not like serving in the infantry. There will be some instances where it is borderline, where it is very difficult to sort out a conflict between two competing obligations. One way to minimise the problem that you are talking about is for universities to start taking a more pragmatic approach to those liabilities. For example, if you look at a number of external speaker policies—they are essentially codes of practice under section 43—you would think that putting on an academic talk was a terribly dangerous event.
Emma Hardy
Q
Dr Harris: That is one proposal. I think that universities would probably ignore it, just as they have ignored the Equality Act—
Emma Hardy
I was referring to guidance from the Bill, but okay.
Dr Harris: It is one option. You can create a duty to have due regard for guidance. That is one option. For universities, it would not be enough to get them—
Emma Hardy
Q
Dr Harris: One thing you could do is to amend the Equality Act in the Bill to state that, in the academic context, universities must have due regard—
Emma Hardy
Q
Dr Harris: No. Because I do not think that they pose the same difficulty and there is not as much systemic overreach.
Emma Hardy
Q
Dr Harris: I have not really thought about how it interacts with this Bill. Certainly I have considered it otherwise. 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.
Sir John Hayes
Q
Dr Harris: Yes, I very much agree. I think that what the Bill needs to do—this fits with the previous question—is elevate freedom of speech to the policy decision-making process, or the matrix, so that it is one of those considerations that is always baked into decision making.
To give you an example, the University of Cambridge launched a really quite restrictive reporting website where it asked staff and students to report micro-aggressions, which could include raising your eyebrows and that sort of thing. Now, the FOI request that we did on that showed that there were something like 400 pages of planning, correspondence and decision making about this report and support website. How was there so much consideration of this policy, and at no point did anyone step in to say, “Is this compliant with our legal free speech duties?” It is this absence from decision making. I think all this Bill needs to do to be successful is to cause a momentary pause. It needs to cause a degree of reflection.
Sir John Hayes
Q
Mr Jones
No, it’s conscious bias—[Laughter.]
Dr Harris: Yes, absolutely. For instance, in the determination of curriculum content, that is something where there absolutely must not be imposition of bureaucratic standards. The example that I cited in the written submission was that of the University of Oxford’s music faculty, which decided to decolonise its curriculum. I should say that that is a legitimate exercise of academic freedom, but it then said, “Members of the faculty must not disparage the curriculum.” Obviously, curriculums are changed by disparaging them—that is how they came to be decolonised in the first place—so we cannot stop the process.
There needs to be, and I think the Bill could include, a right of consultation. It is academic good practice anyway, and it slightly demeans universities that they need to be told that, because it should be part of academic ethics. There is also the right to criticise one’s institution. That is part of the international law standard of academic freedom. It is embedded in a number of university statutes. Whatever happens, the standard adopted by the Bill should be at least what is already best practice in the sector. I do not think it should go beyond that.
Lloyd Russell-Moyle
Q
Dr Harris: Yes—
Lloyd Russell-Moyle
Q
Dr Harris: We did not take them to trial, I should say.
Lloyd Russell-Moyle
Q
Dr Harris: We wrote letters to them, but to get to the central—
The Chair
Q
Ordered, That further consideration be now adjourned. —(Michael Tomlinson.)