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

(Limited Text - Ministerial Extracts only)

Tuesday 7th September 2021 Public Bill Committees

[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.

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[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.

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[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.

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[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.