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

Michelle Donelan Excerpts

Monday 13th September 2021 Public Bill Committees

[Matt Western]

[The Minister for Universities (Michelle Donelan)]

[Michelle Donelan]

[Michelle Donelan]

[Michelle Donelan]

[The Chair]

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[Matt Western]

[Michelle Donelan]

[Michelle Donelan]

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

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[Matt Western]

[Michelle Donelan]

[Michelle Donelan]

[Michelle Donelan]

[Emma Hardy]

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

Michelle Donelan Excerpts

Monday 13th September 2021 Public Bill Committees

[Mr Holden]

[The Minister for Universities (Michelle Donelan)]

[Michelle Donelan]

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

--- Later in debate ---

[Matt Western]

[Michelle Donelan]

[Michelle Donelan]

[Michelle Donelan]

[Michelle Donelan]

[The Chair]

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

Michelle Donelan Excerpts

Monday 13th September 2021 Public Bill Committees

[Matt Western]

Yes.

Professor Kaufmann: I never endorsed any Government action on critical race theory in universities—only in schools where the teaching is compulsory and you have to pass the element. In a university, it absolutely should be taught; people are free to take it and to teach it. It is a different thing: you are dealing with adults. In a school where every pupil has to be taught critical race theory, we have a compelled speech issue, a freedom of conscience issue.

I think critical race theory is a conspiracy theory. I am quite open about that. However, there is high critical race theory, which is interesting, is worth teaching and has some insights. The vulgar critical race theory that is appearing in schools and some diversity training, where they separate pupils by race and say that some are oppressors and some are oppressed, is nonsense. However, in a university classroom, people are free to take what they want and teach what they want. In schools, where we are not dealing with adults and it is compulsory, there is a freedom of conscience issue. I make that distinction very clearly.

[The Minister for Universities (Michelle Donelan)]

Q Thank you both for coming in. Professor Kaufmann, in the Policy Exchange paper you co-authored you recommended a statutory tort. I wanted to ask you why you think that that is so important, and how you think it will work in conjunction with the Office for Students complaints scheme.

Professor Kaufmann: It is important for academics who might find themselves in a situation in which they are disciplined for speech to have recourse against their institution if that institution is not upholding their rights to freedom of speech. The point of the statutory tort is simply to allow an avenue for those with grievances that cannot be met within their institutions. Very often, I am sad to say, many institutions are not doing a successful job of upholding this right for many academics —hence the need for recourse to the court system.

[Michelle Donelan]

Q This is a question for both of you. How do you think that we can best ensure an atmosphere on campus that allows difficult and controversial topics to be discussed while maintaining an inclusive environment?

Professor Goodwin: From my experience, this debate is already actually beginning to bring about some important culture change. The shift from protecting to promoting is incredibly important. Universities are, by their nature, very bureaucratic organisations, and, once this change gives a signal about the renewed importance of protecting academic freedom, it will have a profound impact on universities. I can speak from experience of my university, the University of Kent, which is already having a vigorous debate about academic freedom and I am sure will emerge as a sector leader in promoting academic freedom. It is reassuring to see the way in which this national discussion is already bringing about change.

For many of my colleagues, who have in some cases been sacked, disinvited, intimated, harassed, undermined and mocked, this piece of legislation is very important, for obvious reasons. We are not talking about small numbers, as Professor Kaufmann points out. I know from personal experience that having the ability to go to an external entity to ensure that cases are explored and examined will play a critical role in ensuring viewpoint diversity within the sector. I think it is already having an impact, and I suspect that, much like the legislation around equalities, we will probably find that within a few years universities will suddenly be arranging league tables of academic freedom and all the kinds of things that tend to come with changes that are brought about by law.

There is a massive opportunity to emerge globally as a leader in the promotion of academic freedom in a debate that is global. The Canadians, the French and the Americans are talking about it, and nobody has really got a hold of it and demonstrated what it means in practice, so I think there is an opportunity for the UK to be that model.

[Michelle Donelan]

Q Professor Kaufmann, did you want to come in on that?

Professor Kaufmann: I am Canadian, and it is interesting to look at what has happened in the province of Ontario. Ontario and Alberta have both adopted elements of this kind of legislation, and it has been very ineffective because it has not gone the same distance that this legislation has. In the province of Ontario, all universities have to adopt a sort of Chicago principles-style free speech document and issue an annual free speech report, and there is an ombudsman for complaints. However, there is not anything like a director of academic freedom to spearhead the process, so even though there is an ombudsman, that individual is in fact not on board with this agenda. Therefore, when people have made complaints, they have gone nowhere.

It is incredibly important, therefore, to have a director of academic freedom who believes in promoting academic freedom, can see this through and can proactively make sure the legislation is applied. That is an absolutely critical part of this legislation. That is one of the reasons that this is so path-breaking. William McNally, who is a professor in a Canadian university called Wilfrid Laurier, looks at the UK and says, “I wish we could have something like the UK’s Higher Education (Freedom of Speech) Bill.” I think this could very well be world-leading.

[Michelle Donelan]

Q My last question is to both of you. What is the biggest threat, as you perceive it, to freedom of speech in our universities?

Professor Goodwin: I think there are multiple threats relating to debates we are having around the role of China; indeed, that was in the newspapers again over the weekend, relating to the University of Cambridge. We also have parallel issues around the ability of gender-critical academics, some of whom you heard from last week, to be able just to conduct themselves on campus without requiring security, which is an incredible state of affairs for anyone to be in. There is also the ability of some of our colleagues in history and psychology to challenge conventional wisdom on issues ranging from the role of Britain’s empire through to intelligence and unconscious bias testing—you name it. All that should be on the table, and we should be interrogating, exploring and examining it. The threats are multi-faceted and are not just coming from one direction. That underlines the need for some action in this area.

Professor Kaufmann: I would add that even though conservative academics are reporting much higher levels of self-censorship—two to three times as high as the left—it is also the case that this is not just about protecting conservatives. Certain types of left-wing research around the middle east, for example, and Islam will also benefit from this protection. It is worth noting that. In our Policy Exchange study, we had a number of left-wing academics making that exact point. They are worried about some off-campus groups such as Turning Point UK. They are worried about Prevent and discussions around Israel-Palestine, so this Bill will benefit not just conservatives.

Of course, it is the case that political minorities are reporting much higher levels of self-censorship. For example, in the King’s study—you will be hearing from one of the authors later—they asked about the statement:

“Students with conservative views are reluctant to express them at my university”.

Conservative students agreed by a 59:26 ratio. There is a much higher level of censorship and chilling going on for Conservatives, but it is not only Conservatives—certain kinds of left-wing speech are also being chilled. The Bill will benefit both kinds of speech.

[The Chair]

More than half of the time allocated has already been used up. I hope that colleagues will make their questions very brief, in the hope of encouraging succinct answers.

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[Matt Western]

Q You heard the previous session. There was a lot of talk from the previous two witnesses about self-censoring and so on. Do you share those concerns, or do you think, as I was perhaps suggesting, that we all self-censor to a certain extent? As we heard from a witness last week, that is just the way of the world—you get on with it and you make your case.

Sunder Katwala: The harder question about self-censorship is: what will these mechanisms do about self-censorship? They might change the culture in a very positive way, because everyone feels reinforced and is not worried about stigmatisation, but they might change the culture in a rather negative way, where everyone is bringing cases and counter-cases against each other, and the processes, the punishment, could get worse if we have a lot of tit-for-tat things. There might be something in the culture of a regulator about the treatment of, say, vexatious cases as opposed to substantive cases, which might be quite important if the stress actually comes from the possibility of the cases. Because self-censorship and chilling effects are cultural points, it is not obvious to me that we know how these mechanisms affect that broader cultural plane.

[Michelle Donelan]

Q Your recent research suggests that more divisive voices and controversial issues are often amplified online. Do you agree that that influences how freely the majority of people feel able to express themselves?

Sunder Katwala: On the whole, in terms of the British public and the general population, these current issues of free speech and academic freedom are important issues in our political and media culture and so on; they are not gripping the broad public. It is a much less heated and polarised debate about these issues in Britain than in the United States of America. It might be the case that in five, 10 or 15 years, we have a much more heightened culture, but there is a very broad balance, a middle, in British society. When we have engaged in conversations about the worry about people being called racist before they have been racist, but also about wanting decent debates about race and integration that do not cross boundaries, a great many people are trying to strike those balances in a way that is good for freedom of speech but has boundaries.

A lot of people think political correctness can go too far if you take it too far, but they will then say, “But it had a point in the first place.” To give an example, research by More in Common found that seven out of 10 people in this county think that political correctness can be a problem if you overapply it, overreach with it and go for trivia. Seven out of 10 people think that hate speech can be a problem, because we are letting too much go. The median person in Britain thinks that both those things are true. At the same time, they are probably frustrated that we are removing episodes of “Fawlty Towers” from archives. It is entirely trivial, while we are letting neo-Nazi content run riot on Facebook. There is awareness of this tension, and frustration that you could overreach in different directions.

What is much more the case in America is that people have picked a side. Therefore, they are always on one side of every question. We definitely have the possibility of having that culture among the most politically engaged—the people who spend most of their time on the internet, and perhaps the people who write the most newspaper columns—but most people are quite frustrated with that, because they would see that there are good public goals here that might be complicated to get right.

[Michelle Donelan]

Q I will ask just one more question, because I know that a number of Members want to come in. Do you agree that it is important to create an atmosphere on our campuses whereby difficult issues can be openly discussed, to create the critical thinkers of tomorrow?

Sunder Katwala: Completely, yes. It is the question of whether there are any boundaries where you would be allowing reprehensible content that undermined academic freedom, liberal democracy or the role of the university, if you did not get those difficult cases right.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

Q Thank you very much for your evidence. I should declare my interests, as I have done in previous sessions—Sussex University, the University of Bradford and the University and College Union.

Is there a problem that expanding this to student unions might have detrimental effects? Student unions traditionally allow students to self-organise ginger groups, different political groups and so forth. If you require the Conservative club to enforce academic freedom, does not that make a mockery of having a club of Conservatives in which they can talk and debate issues among themselves?

Sunder Katwala: In principle, I do not see why it should do so—unless you have organisation of it wrong. As I see it, the principle is that the Bill should protect the difficult conversations that different people want to have. In theory, it should be blocking people saying, “I don’t like you saying that about Winston Churchill or the British empire—that’s too tough,” as well as stopping other things. But the devil is in the detail.

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[Matt Western]

Q Have you had any conversations with the current chair or the DFE about what the scale of the department—it will not be just one individual; it will be the director of freedom of speech plus X people working within the department—will be, what the cost will be and how that will be funded? Would the OfS need an additional budget?

Secondly, do you have concerns about what will happen for universities and student unions? One of the points that came out from the BEIS report, which you may have seen, is what significant costs there will be for universities and student unions, which clearly, after the past 18 months, are really struggling financially anyway.

Nicola Dandridge: It is very difficult at this stage to predict what the pressures on the Office for Students will be as a consequence of the proposals, but certainly the complaints system is likely to generate quite a lot of work. It is really important that we have the capacity to deal with that properly without compromising our important work on quality and standards, and access and participation. This is an area that we will be keen to discuss with Government to ensure that we are properly resourced to do this work well in all its complexity, without compromising our other work.

[Michelle Donelan]

Q Thank you for attending, Ms Dandridge. When considering the impact that the new director could have, we can look at the impact that the director for fair access and participation has had. Could you outline the positive impact that you think having somebody solely responsible for that area has had?

Nicola Dandridge: In my view, and I think the view of many others, the role of the director for fair access and participation has been really significant in setting expectations, driving through the importance of what is also a very complex agenda, engaging in discussions with universities, students and student unions, and speaking publicly about the importance of access and participation. I think the impact that the director has had has been really significant, and it is a good analogy for the impact that we hope the director for freedom of speech and academic freedom will have similarly.

[Michelle Donelan]

Q What routes could students, staff and visiting speakers currently take if they wished to raise with the OfS a concern about a provider with regard to free speech?

Nicola Dandridge: We have to approach free speech in a rather oblique way, because of the way our powers are structured and set up. We have a number of public interest principles, of which one is a duty to protect academic freedom. The other is to secure free speech. What we say is that, under one of our registration conditions, all universities and colleges have to have governing documents that uphold those public interest principles, and they have to have governance and management arrangements to adequately implement those public interest principles.

The way into this is not exactly straightforward. We have a number of ongoing cases where we are looking at issues of free speech, but because of the ways our powers are framed, we are primarily looking at whether universities and colleges have the systems in place to address issues of free speech themselves, rather than our adjudicating on them. That is rather a complex explanation, because of the way our powers are structured. They are slightly, as I say, oblique, whereas what the Bill proposes is entirely different. It foregrounds the importance of free speech and, for all the reasons of which you will be aware, gives us significant additional powers in that respect.

[Michelle Donelan]

Q So as the body dedicated to students, in essence, would you say that you are constrained at the moment in assisting students with issues of free speech?

Nicola Dandridge: The way our powers are structured means that we approach it by looking at the systems that the university has in place. That is a very limited way of engaging with issues of free speech, so yes, it is constrained.

[Emma Hardy]

Q Welcome—it is great to see you here. Coming back to the point that you made about the regulatory overlap between the OfS and the OIA, you said that we would need to have some sort of clarity and talk about that. Would you say that that clarity should be in the Bill—that it should explain who does what—or are you thinking more about guidance produced by the Department for Education? How can that work out so that everybody knows where to go and whom to go to?

Nicola Dandridge: I was thinking that it would be the latter. It is one of the first responsibilities that the director for free speech and academic freedom will have to undertake. Although it would be their choice, not mine, I would anticipate that they would want to produce guidance in order to provide clarity in some of these very complex areas, one of which is who does what and how it is done. I was anticipating that it would be guidance and not on the face of the Bill.

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

Michelle Donelan Excerpts

Monday 13th September 2021 Public Bill Committees

[Mr Holden]

Q Your emphasis has been on the student and their feeling of academic freedom, which is something that we have not discussed in as much depth as we have for the academics themselves. Do you get the feeling that some of the academics you work with also feel that they have to self-censor in what they are doing, or is that more on the student side in your experience?

Professor Grant: I am going to be very dull and say that we do not know, because I like to look at the research and evidence. I have looked to see how you would survey academics to ask the same questions that we ask the students, and from a purely methodological point of view, it is really difficult to do that, so I will sit on the fence for that question.

[The Minister for Universities (Michelle Donelan)]

Q The Committee has heard evidence from a number of people who have said that their individual academic freedom, or that of their colleagues and, potentially, their students, has been restricted. Do you both acknowledge that that demonstrates that restrictions on freedom of speech in our universities are actually happening and are not a rare phenomenon?

Professor Layzell: Universities have a range of processes and procedures in place that protect and provide some protection against that. In my own institution, for example, promotions and reward procedures are anonymised—we focus on the CVs and the evidence in front of us—so existing mechanisms provide a degree of protection. I cannot comment on individual cases. I can guess some of the individuals you are referring to, and they may well have had some experiences where they felt disadvantaged or adversely affected; we recognise that.

In addition, the wording in the Bill varies in different places. In some places it talks about “likelihood” and in others it talks about being “adversely affected”. In our submission, we have suggested that “adversely affected” is a better term and should be used consistently throughout the Bill.

Professor Grant: I am going to be boringly analytical again. There is no issue when it comes to the cancelling events. The numbers are small, as the OfS demonstrates. There is potentially an issue when it comes to this idea of self-censorship in the classroom, and I think that is a legitimate concern. As I just said, when it comes to academics, we do not know. It is inevitable that people who feel that they have had their freedom of speech inhibited will talk about that, but we do not know about all the other people who are not talking about it. We need to get the data. At this stage, I will say that you cannot answer that question on academics.

[Michelle Donelan]

Q I have just one more question. What more do you think universities could do to promote free speech?

Professor Grant: What we did at King’s was work with our student union in developing a joint statement modelled on the Chicago principles and signed by both the president of the student union and the president of King’s College London. On the back of that, we developed a committee that reviewed all so-called high-risk events. That committee was made up of equal numbers of university staff, academics and professional staff, and students. It made recommendations to the senior vice-principal for operations and, potentially, to the principal. In my mind, creating a sort of co-production and co-creation process around managing those events was deeply beneficial because, as the previous witness said, both sides started having conversations about the boundaries of what is and is not acceptable. Both groups then owned the process and the mitigations thereafter.

Professor Layzell: I think Universities UK would support what Professor Grant said. Many universities will have similar sorts of processes. I think one other step that could be taken—this comes under the promotion of free speech duty in the Bill—is to help students to better understand the role of university education. It is quite different from school and college. I think the concern that some students have about expressing a view is not necessarily about freedom of speech; it is about having the confidence to speak out and express an opinion.

I think we could do more to help students to understand how the university education process works and the role of freedom of speech and freedom of expression within that, in order to encourage them to have the confidence to express views that might be contrary to those of others in the room and to feel comfortable with that, and to help them understand that that is a normal part of how we do our business; that that is the lifeblood of academic research and teaching. I think we could do more in that respect.

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[Matt Western]

Q Finally, other legislation is quite clear in how it addresses and balances competing freedoms, but there is seemingly no such balance in this legislation. Can you expand on the importance of balancing competing freedoms on campus, particularly in a higher education setting?

Danny Stone: I learnt a lot about the balancing of freedoms from a guy called Ray Hill. He was a far-right mole who talked to me about the importance of not always shutting down debate. His experience of working with young people, particularly on the far right, was that opportunities to ask difficult questions and raise difficult issues should not be shut down. Equally, he acknowledged the harms caused by some people who express particular views in harmful ways.

This has been addressed in the higher education sector. Malcolm Grant did a report in 2010 in which he talked about trying to promote freedom of speech while understanding its limits. He said that universities need to balance the competing interests and might reach

“different but equally legitimate conclusions about the same matters.”

The Prevent guidance that followed talked about freedom of speech and moral obligations to address harms. We have seen it in Government guidance from 2008 about free speech, which said that everyone can be safe and not intimidated at university.

In fact, the human rights memorandum for this Bill says that there will be competing freedoms, but it suggests leaving it to the end point: the universities. You have heard from people today who say, “Well, the universities aren’t getting it right.” My view is that it should be on the face of the Bill, per the Online Safety Bill, the Joint Committee on which I appeared before the other day. Recognition of the complexities and the competing freedoms would be welcome.

[Michelle Donelan]

Q Danny, you have previously raised concerns about a lack of consistency in the duties on higher education providers, in that they do not apply to student unions—something that this Bill would correct. Do you think that it is important that we do that?

Danny Stone: In terms of student unions? Absolutely. Again, if we are talking about complexities, there was a move to essentially prohibit the Jewish society at the University of Essex from becoming a society. That was unacceptable, and I believe it was reversed in the end. Similarly, there have been moves in the past to ban Jewish societies, and I was involved in campaigning against a motion at the University of Manchester that essentially would have done that.

On the flip side, there are front groups such as Hizb ut-Tahrir, which is not a proscribed organisation, that will seek to set up on campus, and there are far-right organisations that will seek to set up student societies on campus. That presents me with real concern. Could they potentially appeal and try to get money and find a route through? Yes, they might. There is a complexity in this which I would like to see recognised in the Bill. I would like to see something about the competing freedoms that exist.

[Michelle Donelan]

Q Do you think Jewish students feel comfortable reporting incidents where they may have had their freedom of speech inhibited?

Danny Stone: I think it depends on the institution and on how confident they might be. For example—I am sure we will come back to this—at the moment at Bristol, and potentially at Warwick, there have been concerns raised by the Union of Jewish Students about the operation of their procedures. In fact, I think the OfS may have taken at look at Warwick. It will depend, but I can well imagine there will be instances in which Jewish students would be nervous about reporting their concerns.

[Michelle Donelan]

Q Thank you. Hillary, in the past you have said that there is a freedom of speech problem on our campuses. Can you explain why you said that? Was it from personal experience?

Hillary Gyebi-Ababio: Could you clarify where and when I said that, please?

[Michelle Donelan]

It is from one of the documents we have from a while ago.

Hillary Gyebi-Ababio: Sure. I cannot recall exactly when I said that—apologies—but to speak to the background of the Bill, I think there are concerns around the evidence upon which this Bill has been brought about. If there is anything that we need to be worried about on campus, it is facilitating what would look like equitable free speech for everyone. Some students on campus do not feel that they have the same level of rights to free speech as others because, for example, existing legislation makes them nervous about speaking about their views or what they believe. In 2018, 43% of Muslim students, if I recall correctly, talked about the Prevent duty having an impact on their ability to feel—[Interruption.]

[The Chair]

Order. There is a Division. The sitting will be suspended, and I shall resume the Chair in 15 minutes’ time, just before half-past six o’clock.

Prevailing Market Rates

Michelle Donelan Excerpts

Thursday 9th September 2021 Written Statements

[The Minister for Universities (Michelle Donelan)]

I am announcing today a temporary reduction in the maximum student loan interest rate following the recent decline in the prevailing market rate for comparable unsecured personal loans.

In accordance with the Teaching and Higher Education Act 1998, where the Government consider that the student loan interest rate is higher than the prevailing market rate for comparable unsecured loans, we will take steps to reduce the maximum student loan interest rate.

The Government regularly monitor the interest rates set on student loans against the interest rates prevailing on the market for comparable loans.

Following a decline in the prevailing market rate, I have today, 9 September laid legislation to cap the maximum post-2012 income contingent repayment undergraduate and the postgraduate income contingent repayment student loan interest rate in line with the prevailing market rate. The cap will come into effect from 1 October 2021 and last for a period of three months.

The reduction will be 0.4 percentage point on the maximum student loan interest rate to reflect the average market rates during the preceding monitoring period.

The maximum post-2012 undergraduate income contingent repayment student loan interest rate and the postgraduate income contingent repayment student loan interest rate will be 4.1% between 1 October and 31 December.

From 1 January 2022, the post-2012 undergraduate and postgraduate income contingent repayment student loan interest rates will revert to the standard rate +3%.

Further caps may be put in place should the prevailing market rate continue to be below student loan interest rates.

[HCWS275]

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

Michelle Donelan Excerpts

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.

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

Michelle Donelan Excerpts

Tuesday 7th September 2021 Public Bill Committees

[The Chair]

[The Minister for Universities (Michelle Donelan)]

[The Chair]

--- Later in debate ---

[Mr Jones]

[The Minister for Universities (Michelle Donelan)]

[Michelle Donelan]

[Michelle Donelan]

[Michelle Donelan]

[Emma Hardy (Kingston upon Hull West and Hessle) (Lab)]

--- Later in debate ---

[Matt Western]

[Michelle Donelan]

[Michelle Donelan]

[Michelle Donelan]

[Michelle Donelan]

[Lloyd Russell-Moyle]

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

Michelle Donelan Excerpts

Tuesday 7th September 2021 Public Bill Committees

[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 [e-mail], 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

[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.)

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[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.

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[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?

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

Michelle Donelan Excerpts

Tuesday 7th September 2021 Public Bill Committees

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Oral Answers to Questions

Michelle Donelan Excerpts

Monday 6th September 2021 Commons Chamber

[Marco Longhi (Dudley North) (Con)]

3. What steps his Department is taking to protect freedom of speech on university campuses.

[The Minister for Universities (Michelle Donelan)]

We are working to ensure that lawful freedom of speech is supported to the fullest extent, which is why the Higher Education (Freedom of Speech) Bill was introduced on 12 May. The Bill will strengthen existing freedom of speech duties and introduce clear consequences for breaches of the new duties.

[Marco Longhi]

Labour and the Lib Dems have described the Higher Education (Freedom of Speech) Bill as a distraction. Does my hon. Friend agree that the politicising of education, the tearing down of statues and the censorship of speakers who do not fit left-wing woke narratives are all completely indefensible, and that the protection of academic freedoms and freedom of speech in education settings should be a priority for us all?

[Michelle Donelan]

This Government believe that freedom of speech and academic freedom are a fundamental pillar of our higher education system and that protecting those principles should be a priority for our universities and never a distraction. That is why this Government have introduced a Bill to strengthen protections for free speech and academic freedom.

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[Christine Jardine (Edinburgh West) (LD)]

15. What funding the Government have provided to universities for effective ventilation to help safeguard students against covid-19 in the 2021-22 academic year.

[The Minister for Universities (Michelle Donelan)]

Higher education providers should complete suitable and sufficient assessments of the risk of covid-19 and identify measures to manage those risks, including ensuring adequate ventilation based on our comprehensive guidance. As autonomous institutions, it is for providers to put in place their plans based on individual circumstances, including allocating their own budgets.

[Christine Jardine]

Notwithstanding the Minister’s comments, there are still huge gaps in what needs to be done to provide a safe learning environment for students up and down the country. Students, including many from my Edinburgh West constituency, have already had two academic years disrupted and proper ventilation will be vital to preventing a third, so will the Minister make a commitment here and now that if the schools test pilot currently under way proves successful, it will also be rolled out in our universities?

[Michelle Donelan]

The hon. Member talks of Edinburgh university but I am sure she will understand that education is in fact devolved. She also refers to the CO₂ monitoring devices that are being allocated this term to schools; however, technical limitations mean that CO₂ monitors are likely to be unsuitable for many spaces in universities, particularly those with high ceilings.

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[John Lamont (Berwickshire, Roxburgh and Selkirk) (Con)]

T6. What steps are the Government taking to promote the Turing student exchange scheme in Scotland?

[The Minister for Universities (Michelle Donelan)]

The Turing scheme has exceeded expectations, with 40,000 placements across 150 locations. Ministers met Scottish journalists and education providers when applications opened. A total of 28 Scottish institutions have successfully applied for over £7.8 million in funding.

[Carol Monaghan (Glasgow North West) (SNP)]

The Council for At-Risk Academics has called on the UK Government to set up a fellowship scheme for scholars at risk in Afghanistan similar to the PAUSE scheme in France. Will the Secretary of State consider implementing such a scheme?

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[Michelle Donelan]

I am more than happy to meet the hon. Member. I work very closely with my colleagues in the Home Office to assist them and make this as smooth as possible, as international students are vital to this country, not just economically, but culturally and for our society.

[Mr Speaker]

I call Bob Blackman.