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

Emma Hardy Excerpts

Monday 13th September 2021 Public Bill Committees

[Fiona Bruce]

Q You reflected on the implications of exercising academic freedom. I think Professor Goodwin hinted on the loss of posts by some colleagues. I would be interested if you could reflect a little more on that, because it is a very important issue. Should a right to apply to the employment tribunal be included in the Bill? You said that going to an external entity is important.

Professor Goodwin: This is how it typically works: a group of students will make a complaint about an academic. They may take that academic’s words out of context. They may imply that something was said that may not have been said—who knows? That academic is typically investigated and, as we saw in the case at Edinburgh recently, they are suspended and asked to leave campus for six weeks or so while the case is investigated. There is a reason why academics says that the punishment is the process. The reputation of that academic is now in tatters. Nobody will hire that academic. His or her chances of getting a research grant are probably minimal, and those of getting published have been severely damaged.

That individual is tainted. We are tainted simply for making some of the arguments that we have made today. The protections and the right to recourse that we give to academics who find themselves in that situation should be as strong as possible. Our entire world is dependent on reputation. Everything we do is under our name. If allegations are made that may even be free of evidence, the onus is very much on the academic to defend themselves against something that often has detrimental consequences.

I personally know many professors, for example, who are on medication to sleep because of the stress and strain that comes with this new culture that we have had. In America, Jonathan Haidt’s “The Coddling of the American Mind” has documented this in detail. From 2010 onwards we have seen a dramatic increase in the number of student protests, and much more robust, assertive activities to try to constrain what can and cannot be said on campus. I will allow Eric to come in.

Professor Kaufmann: I want to add one thing. The nature of the academic employment market is such that any permanent academic job in a lot of universities will get 100 or 200 applications for each position. To get a position in your field of specialty in a place you want to be is not impossible, but it is extremely difficult. If you lose at it, it is not enough to pay somebody a year’s salary. This is why we need recourse to an employment tribunal that can recommend reinstatement. You need reinstatement, not just a year of salary. A year of salary is not going to cut it when you are unemployable, so it is vital that this amendment goes through.

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

Q I am going to ask the witnesses to be as brief as possible, because there are hundreds of things that I would like to ask, but I will try to limit them to just a couple. Professor Kaufmann, in your written evidence, you stated:

“Only in this manner can academics have the confidence that they are protected from ideological opponents who wish to punish them for their views.”

I support you in wanting to protect academics from ideological opponents. How can we ensure the independence of the director of freedom of speech? Interestingly, further on in your written evidence, you refer to an ombudsman system in other countries. How can we ensure the independence of the director of freedom of speech to prevent “ideological opponents” who wish to punish academics?

Professor Kaufmann: All that the director of academic freedom has to do is enforce the letter of the law.

[Emma Hardy]

Q Sorry, I am going to quickly interrupt. To enforce the letter of the law, should the director be legally trained? Should they be a legal expert if their duty is to enforce the letter of the law?

Professor Kaufmann: No, I do not think you need to have a lawyer in there. You just need somebody who understands the spirit of the legislation—it is not too difficult—but who is proactive.

[Emma Hardy]

Q But they would have to make decisions on where freedom of speech falls between the Equality Act 2010, this piece of legislation and of course the Counter-terrorism and Security Act 2015. Would you not therefore presume that they should have at least some knowledge of the law if they make rulings?

Professor Kaufmann: I think their office and the legal advice that they take can guide them. Those kinds of details—

[Emma Hardy]

Q So you would expect them to be surrounded by lawyers who could give them legal advice in their role?

Professor Kaufmann: They could take legal advice, certainly.

[Emma Hardy]

Q Provided by the Office for Students to accompany the director?

Professor Kaufmann: I am probably not enough of a policy wonk to know where such an individual would sit. Would you contract it out or have it in-house? That is a decision for somebody else to make, but I think that you need to make a legally informed decision that is in alignment with what a court would decide and what the intent of the legislation is.

[Emma Hardy]

Q You foresee the director making decisions in alignment with what a court would decide, not within a court, so they make legal decisions, but not within a court. Is that correct?

Professor Kaufmann: No, I think they proactively apply the law so that it does not go to a court. Another system could be to allow everybody to sue, but that is reactive. It is very difficult and expensive to go through these court cases. We have seen that in the US in first amendment court cases.

[Emma Hardy]

It is hugely expensive.

Professor Kaufmann: I would much rather be proactive. Also, you need it to be proactive in order to give academics assurance. If they have to sue—[Interruption.]

[The Chair]

Emma, would you please allow some academic freedom to this witness? You may disagree with what he says, but you must allow him to answer your question.

[Emma Hardy]

Q I will. I would just ask you to be as precise as possible.

Professor Kaufmann: Of course.

[Emma Hardy]

You are talking about how this director of freedom will have some knowledge of the law but will not be a lawyer, and will make law-based decisions but not in a court. How should they obtain this position, then, to ensure this academic freedom and prevent ideological opponents from being punished?

Professor Kaufmann: The criteria would involve somebody who is knowledgeable about the sector, who would also be on board with the mission of protecting academic freedom and would care about it. I think those are the two most important qualities for an individual.

[Emma Hardy]

Q I agree, but how would you foresee them obtaining this? Who is going to appoint them? How are they going to reach this position? As we know, this position is the first time that a higher education regulator will have the power to intervene in student unions. This is a massive expansion of the state’s powers over universities. Who gets to choose who this person is?

Professor Kaufmann: I wish I were an expert. There has to be some sort of precedent in terms of these bodies. I guess they would be advertised; you would have the criteria. The Office for Students would presumably be involved, and the Government would be involved. That is the best I can give you.

[Emma Hardy]

Q Would you expect the Government of the day to be involved in appointing the director of free speech?

Professor Kaufmann: Yes, I would. I think it is important that they are accountable to the voters. They need to be sure that the person is upholding the values that are important for this role, because I think there is a problem that sometimes, bodies can be captured by a particular stream of opinion. As we know, this can happen in academia, so you have to have a check on that.

[The Chair]

I am going to stop this now and ask Gareth Bacon to ask a question, because we have only three minutes left.

--- Later in debate ---

[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.

[Emma Hardy]

Q I know that the Office for Students has received two letters recently from the Secretary of State, directing you to reduce the regulatory burden on higher education providers. How does the Bill align with the Secretary of State’s stated aim to reduce the regulatory burden?

Nicola Dandridge: Well, it is challenging. We take reducing the regulatory burden very seriously. It is one of our own priorities, as well as a priority for the Secretary of State, but it is like all these things. Regulatory burden is not necessarily a bad thing, but it is if it is disproportionate. It depends on what the regulator does, and there is a very serious issue here about academic freedom, for the reasons that you have been hearing this week and last. The way through this is to ensure that our response is proportionate and risk-based, and that will be one of our priorities as we go into this. Clearly it is challenging, because this is a very significant number of additional responsibilities—serious and complex responsibilities—so it needs to be done properly. That is what we will do, and we will look forward to doing it in that way.

[Felicity Buchan (Kensington) (Con)]

Q May I ask a simple question? Do you welcome the Bill?

Nicola Dandridge: Yes. We think that there is a serious and significant issue in relation to academic freedom and free speech in higher education, and the proposals in the Bill seek to address that and create mechanisms for tackling such issues.