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

Emma Hardy Excerpts

Tuesday 7th September 2021 Public Bill Committees

[Michelle Donelan]

Q I have one final question to Dr Ahmed. At Cambridge, you successfully put forward the amendment, which I am sure everybody around the table is aware of, altering the requirement of “respecting” to “tolerating”. Why do you think that amendment was needed?

Dr Ahmed: That was one of three amendments that went through on a large majority. The reason for the concern was that the use of the word “respect” and the requirement for respect in that context meant respect for all kinds of ideas and identities as well. That would preclude, for instance, mockery. It would preclude views that give offence to people who hold religious views. My own particular interest is religion. For instance, I teach the work of David Hume. David Hume was about as offensive in his mocking of religion as anyone was in the 18th century. Would I be able to teach that, because his views were certainly disrespectful towards religion?

Another point, of course, is that whether something counts as respectful depends on how willing the person you are disrespecting is to take offence. So, more sensitive people will end up with a kind of veto. We all have our own examples of people who are especially sensitive taking offence. Those people will end up having power over what we can say and what we cannot. The effect would be absolutely to strangle any form of rigorous academic discussion over the most important things in life. That was why I thought the word “tolerate”, which has no connotations of admiration and is completely compatible with mockery—it simply rules out stopping people from practising or having those beliefs—was more useful, and, evidently, many of the dons at Cambridge agreed.

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

Q Good morning to you both and thank you for being here. On the issue of academic freedom, I want to turn to what the Bill does and does not say. I am looking at the evidence submitted by your friend, I think, Professor Ross Anderson. His concern is around changing the wording in the Bill from

“freedom within the law to question and test received wisdom”

to

“freedom within the law and within their field of expertise”.

I have concerns that a Bill that is allegedly intended to promote academic freedom could in fact limit academic freedom if you are limited to defining what is your field of expertise. I welcome your comments on that.

The other point in the Bill which concerns me around the alleged promotion of academic freedom versus the reality of the Bill is that it talks about academics and not academic staff or those working within the university. They seem to be exempt from coverage under the Bill, as are visiting academics. What are your thoughts on what the Bill does to promote academic freedom? Where can it be strengthened or changed to actually promote the academic freedom that I believe we all support? Maybe Kathleen first.

Professor Stock: I suspect that we differ on this answer, but I think the difference between academic freedom and freedom of expression, assuming there is one, can only be in principle grounded in expertise. That is what makes the difference between the person who has freedom of expression generally and the person who has special protections as an academic. To put it briefly, that is because academics are perceived to have a certain authority, so their authority should be rigorously tested. They should not be able to get away with just saying, “It is just like this, and you have to accept my word for it.” At the same time, there will be people who want to shut them up or buy them off, so we have to keep them protected.

However, I do see that in practice in a university it might be quite difficult to distinguish between these. For instance, there are a lot of professional services that have PhDs who are looking to get into academia. There are students studying and also working for the university in various capacities, so the blurring is quite present. In practice, it might be that that clause does cause problems and may need to be rethought. In principle, though, that is the rationale for this whole conversation on expertise. There is a further discussion about how to differentiate different fields of expertise.

[Emma Hardy]

Q Yes. We had evidence on this issue around a field of expertise and the overlapping between the different academic areas and who would define whether you have a field of expertise in one area versus another. Sorry, I am talking instead of you.

Dr Ahmed: I agree with Professor Anderson’s point with regard to the clause about a field of expertise for a few reasons. One is that, as Kathleen says, there are difficulties around defining a field of expertise. To use an example reasonably close to my own heart, if you take Professor Richard Dawkins, one could argue that theology is not his area of expertise. Many theologians would argue that it is not even his area of competence. I would dispute that myself, but it could be argued. Nevertheless, we would certainly want a Bill that protects his freedom to muse about religion as he likes. That is one issue.

The second issue, which is one Professor Anderson showed very well, is that much innovation in science—and I use the word “science” very broadly—comes from cross-fertilisation between fields. Biologists might have insights into economics, let us say, even though it is not their field of expertise or perhaps even their field of competence. That is often where the really interesting and innovative insights come from. A Bill that restricts academic freedom to one’s area of expertise might well have a chilling effect on those kinds of interactions. For both those reasons I agree with Professor Anderson’s suggestion that the restrictions of expertise should be dropped.

With regard to your important point about whom the Bill covers, the way I think of it is that universities are institutions that have public money. They serve a public purpose and it is essential that that involves free speech, freedom of inquiry and freedom to exchange ideas. Therefore, the simplest way to achieve that would be to have a Bill that covers all staff at universities and all students, rather than making what are possibly invidious and certainly difficult-to-draw distinctions between all academic members of staff.

[Emma Hardy]

Q Do you therefore include visiting academics as well? Further to that, in the evidence from James Murray, he talks about the Bill as it is currently written almost giving primacy to student freedom of speech over academic freedom. What are your thoughts on that? For example, from the evidence that he has given, the Bill says that institutions must have regard to freedom of speech, but, many times in the Bill, it does not add “and academic freedom”. Do you share those concerns that the Bill, as it is written, could give primacy to students’ freedom of speech at the expense of academic freedom?

Dr Ahmed: Well, I certainly do. You say there is a concern that it takes a heavy emphasis on students’ freedom of speech and things like that, but it is one of the things that has been under threat.

[Emma Hardy]

Q But for institutions and those working in institutions, surely we should be promoting academic freedom?

Professor Stock: I took it as implicit. I did think it was slightly confusing because those two things are usually theoretically distinguished—“What is the difference between freedom of speech and academic freedom?”—so it is a bit confusing that “freedom of speech” is the phrase. However, given the context of “Higher Education (Freedom of Speech)”, I thought “Well, this just must be about academic freedom” but, in terms of drafting, that could be clarified.

I would just add, on who it applies to, I think the more temporary and precarious the person’s position, the heavier the duty we have to protect their speech. It is well understood in classical discussions about academic freedom that being in fear of losing your job, of not getting a promotion, or of not pleasing your supervisor, would give you extra reasons to be quiet, to self-censor and so on, so I think it is important that it applies to temporary and part-time positions.

[Emma Hardy]

Q And we have that sort of counterbalance that, if academic freedom is to be genuinely protected, I think it does need to be more explicit in the Bill. Would you like to comment on that?

Dr Ahmed: I do agree with that, but, of course, there are plenty of examples, as we know, of students who have also suffered adverse consequences. As I understand it, the term “adverse consequences” is defined in the Bill for academics, but is not defined for students. However, under any natural understanding of the term, students have suffered adverse consequences by virtue of disciplinary investigations, which have often gone on for months—even if no finding was issued against them—for things that were not illegal and were, at worst, slightly shocking. I think, in some ways, it is worse for people who are 18 or 19 than for someone like me to have to go under a discrim investigation; it could ruin their entire career.

[The Chair]

I will bring in another one. You can come back later, if there is time. We are pressed for time, because this panel must finish by 27 minutes past 10.

--- Later in debate ---

[Felicity Buchan]

Q How big an issue do you think self-censorship is among the student body, as opposed to the academic body?

Professor Biggar: Common sense would say that if grown-up academics are scared, then much more vulnerable students will be even more scared. I mentioned anecdotes. You may know that I got myself into trouble four years ago about my project on colonialism in Oxford, as a consequence of which the Oxford Centre for Global History mounted an official boycott of my project. I then had an approach from a junior research fellow—not a student, but a very junior, insecure academic, without a full-time career ahead of him—who said he agreed with my views and he would like to attend my conference, in May 2018, but would do so with two conditions. Those were that his name appeared nowhere and his photograph appeared nowhere, because he shared an office with two people who had signed one of the three online denunciations of my project. He worried about the future of this career and that he would be punished if they knew that he was associating with me.

That is one instance, but there are others. If that is the case with a junior academic, who is less vulnerable than a graduate student or an undergraduate but still very vulnerable, you can be sure that there are students who are biting their tongues lest they get marked down by their professor. Observe how some professors behave in public in terms of abusing those who disagree with them. If I were a student of some of those professors, I would be very careful. If they can behave that way to other academics, you can be sure that they can behave that way to those beneath them.

Trevor Phillips: Very briefly, most members of the Committee will not know this, but many moons ago— 40 years-plus—I was president of the National Union of Students. On the executive that I led, there was a broad range of opinion, including Conservatives, Liberal Democrats and people who were, believe it or not, way to the left of me. Never a day went by without some ideological dispute or argument breaking out in public. One of the things that strikes me very forcibly is that when I go to campuses and when I read about student politics, there does not seem to be that range of opinion and argument going on on campuses and in student politics. It is not my business any more, but I find that disappointing. I can only read it as the sense, not so much that people are intimidated, but that they just do not think it is worth having the argument. That is very disappointing, because that is where some of our cleverest and smartest people, some of whom are sitting in this room, and some of whom share the Benches on both sides of the Commons, have come from—from that culture of disputation and argument, with a lot of robustness, but a level of respect. That does not seem quite to be the case today.

[Emma Hardy]

Q I would like to return the focus to what is written in the Bill, rather than to re-argue the Second Reading arguments on the merits of whether we should have a Bill or not. Professor Nigel, you wrote in the evidence you gave us, that as the Bill is written,

“it fails to protect expressly the freedom of students and academics to voice critical opinions about their own universities”.

You highlight the concern around the narrowing of academics to their field of expertise. Could you expand on why, as the Bill is written, what we could have is a narrowing of that freedom of academic speech?

Professor Biggar: Yes. That qualification—within their field of expertise—is a hostage to fortune and could have the reverse effect of what is intended. For example, if my academic freedom were confined to my expertise, strictly understood, I am a theologian, so if I wanted to protest about policies of decolonising curricula being rolled out in a rather authoritarian fashion by my university, it could be said that as a theologian, I have no standing—what do I know about colonialism? It is not my field; I am not a historian—or if I wanted to criticise some aspect of the general policy of my university, it is not within my expertise. It seems to me that that phrase needs to be removed, so that academics are free to make their views known on any matter that bears on their institution.

[Emma Hardy]

Q Further to that—I highlight this for Government Members, because they seem to be a little confused about who is covered by the Bill, so I refer to the Taylor Vinters submission from James Murray; it might be worth your reading it. That evidence says that

“one would not want the situation where the free speech of a large group of vociferous protestors is weighed as having more importance than the freedom of an academic”.

It talks about how the Bill is written, giving primacy to freedom of speech over academic freedom. I wondered if you had any concerns about that, or any points about that: how, as the Bill is currently written, we could see a limitation of that academic freedom because of the primacy of the freedom of speech.

Professor Biggar: I cannot help you much with that in detail, except that I think academic freedom needs to have equal standing, because free speech and academic freedom are not the same things. Did you understand that?

[Emma Hardy]

Q Yes. Just to quote from the submission,

“it is arguable that freedom of speech would take primacy over academic freedom when the duty is balanced in practice (i.e. you can read the duty as follows: take particular regard to the importance of freedom of speech when taking reasonably practicable steps to achieve the objective of securing academic freedom).”

Would you be recommending, therefore, that the Bill as it is written is addressed to deal with this imbalance?

Professor Biggar: Yes, I would.

[Emma Hardy]

Q Thank you. Trevor Phillips, you have referred a number of times to something being “within the law”. In the evidence given by the University of Cambridge—can I say that when we have an Oxford professor sat here with us?—they mention that the Secretary of State for Education said on Second Reading that

“the right to lawful free speech will remain balanced by the important safeguards against harassment, abuse and threats of violence as set out in the Equality Act 2010, the Prevent duty and other legislation, none of which we are changing.”—[Official Report, 12 July 2021; Vol. 699, c. 49.]

The University of Cambridge is recommending that that statement, or words similar to it, are included—that clarification is included—on the face of the Bill, and that a steer is provided on how the different duties are to be balanced in practice. Would you support something like that going into the Bill?

Trevor Phillips: No. This is premised on the idea that there is a quantum of freedom of speech that can be shared out between different parties. I fundamentally disagree with that: I think that freedom of expression, rather like love, is infinite, and that you do not balance one lot of freedom of expression against another lot of freedom of expression.

[Emma Hardy]

Q Just to clarify, I was quoting the Secretary of State, who said that

“the right to lawful free speech will remain balanced by the important safeguards”.

Are you disagreeing with the Secretary of State that we should have this?

Trevor Phillips: I have not read the speech by the Secretary of State, but if he put it in the way you have just put it, yes, I am.

Professor Biggar: Could I respond to that briefly? Certainly, there will be a balance, but the crucial question is, “What kind of balance?” It seems to me that that needs to be a matter for negotiation between the Office for Students, via its director, and universities, because this law will change the legal environment. There needs to be a shift in the dialogue.

[Emma Hardy]

Q On that point, would you want to put some kind of balance, or evidence about the balance, within the Bill itself as written, as also recommended by the Free Speech Union?

Professor Biggar: I am not sure what that would achieve. I would not object to it, but it does not tell you what the balance is going to be, which is the really important question. A statutory requirement of balance would not do any harm.

[The Chair]

Fiona Bruce is next.