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

Emma Hardy Excerpts

Wednesday 15th September 2021 Public Bill Committees

[Matt Western]

As I said in my opening remarks, I believe that numerous small-detail changes to clause 1 that might make some difference can certainly be made, albeit that we believe that much, if not all, of this has already been written and is already in legislation. Nevertheless, changes can be made that could bring about a certain pragmatism and greater effectiveness to what is being proposed by the Government.

These two amendments involve just a couple of words. Amendment 51 relates to a perhaps slightly nuanced, but none the less important, interpretation. On the first Bill that I examined, I was in the company of the right hon. Member for South Holland and The Deepings, who was leading for the Government on their Bill on electric and autonomous vehicles. Listening to him and to others, I realised just how important language can be. The nuance of language is certainly important in both amendments.

Amendment 43 is quite specific and extremely important. I use the word “important”, and I am just about to examine the word “importance”. It is vital that we understand the significance of the amendment. The amendments address the relative importance of freedom of speech and academic freedom. We heard in the witness sessions that some people speak of a “chilling effect”, and it is interesting how language gets adopted and then becomes an assumed state. I think there is some appreciation that there are concerns out there and that things can and need to improve, but through the amendments I want to consider the weight we place on these two distinguishable concepts in the Bill, which arguably will affect how effective the Bill is at reducing the issues described by various witnesses.

Amendment 51 stresses the “primacy” of freedom of speech. Clause 1 inserts in the Higher Education and Research Act 2017 new part A1, which stresses that to secure freedom of speech within the law:

“The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable”.

“Importance” is such an important word. Often, it is overly important and very subjective. What does it actually bring? As we heard during the evidence sessions, the importance that one person places on freedom of speech can vary, whether it be unparalleled—I am thinking of the evidence we heard from Professor Goodwin, and his desire to invite fascist groups such as the National Front to speak on campus, infringing upon the wellbeing of minority students—or limited. On the latter, I am thinking of the evidence from the vice-president of the National Union of Students, Hillary Gyebi-Ababi, and her explanation of the NUS no-platform policy for six proscribed bodies.

That is vague and subjective. We all think we know what is meant by importance or important, but how often have we read that something is important, when in fact we viewed it as not being so? That is why the concept of mere importance may be deemed to be too low a threshold. I propose to address that by elevating the threshold to one that is more objective and more concrete by using the word “primacy”.

In the oral evidence sessions, Professor Nigel Biggar, the Government’s own witness, addressed the concerns that freedom of speech would take primacy over academic freedom when the duty is balanced in practice. That is what I am seeking to address with my amendment. When asked by my hon. Friend the Member for Kingston upon Hull West and Hessle whether he would recommend that the Bill as written should deal with that imbalance, he replied: “Yes, I would.” That is pretty categoric. Primacy is absolute; that is the important thing. “Importance” is a value term, and that is why we will be pressing for “primacy” to be in the Bill.

Let me turn to amendment 43. Academic freedom and freedom of speech are of course interdependent, but they are also independent concepts. To avoid an imbalance of one in favour of the other, the values of both should be elevated to prime status, recognising the importance of both concepts simultaneously working with each other. That would address the policy objectives outlined by the Government in their Department for Education impact assessment: first, to

“embed principles that enable students, staff and visiting speakers to feel actively encouraged to express, debate and expand their views on campus”

and, secondly, to ensure that

“staff are able to exercise freedom to question and test received wisdom”.

I believe that the two amendments are equally important, establishing primacy versus importance, but also stressing the vital nature of freedom of speech and addressing through this the policy objectives as outlined by the Government’s own Department for Education.

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

I thank all the Clerks for the work they have done on the amendments. I

Academic freedom came up from our witnesses time and again. I joked about it, but it is a truth that I managed to unite differing academics with wildly different opinions on many different issues on a single point: they all agreed that academic freedom was important and therefore should be on the face of the Bill. I will not keep the Committee long, but I am going to quote three of them.

Professor Stock “took it as implicit” that academic freedom was included within freedom of speech, but agreed that it was

“a bit confusing that ‘freedom of speech’ is the phrase.”

She went on to say that

“in terms of drafting, that could be clarified.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 12, Q20.]

When I asked whether we should have academic freedom in the Bill, she was supportive of the idea. Dr Ahmed agreed that if academic freedom was to be genuinely protected, it needed to be more explicit in the Bill. That was another of the Government’s witnesses.

Professor Biggar, another of the Government’s witnesses, said that

“academic freedom needs to have equal standing, because free speech and academic freedom are not the same things.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 29, Q54.]

He recommended that the imbalance in the Bill as written—that is, mentioning only freedom of speech—be addressed. He agreed with Taylor Vinters, whose submission has been referred to, that it was

“arguable that freedom of speech would take primacy over academic freedom when the duty is balanced in practice”.

I hope that the Government will listen to their own witnesses who gave evidence on the importance of having both freedom of speech and academic freedom.

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[Michelle Donelan]

I thank the right hon. Member for his question. There is no point in duplicating in the Bill, because academic freedom is a subset of freedom of speech. That is clearly accepted.

[Emma Hardy]

Will the Minister give way?

[Michelle Donelan]

I will continue a little bit. Amendment 51 proposes primacy instead of importance. The Government are clear that freedom of speech is a fundamental right. Indeed, the new requirement to have “particular regard” is intended to shift the dial in the balancing act that providers have to undertake in order to give more weight in favour of freedom of speech than currently. However, this does not mean that freedom of speech must always outweigh other considerations; rather, it indicates that it is a very important factor. This is the right approach. The Bill does not place on providers a requirement to prioritise freedom of speech over other rights, such as freedom of religion. The requirement to have particular regard to the importance of freedom of speech may, in a particular case, prompt a provider to prioritise freedom of speech over another right, but this would always be subject to the provider’s assessment of what is reasonably practical, and would need to be lawful. The Bill does not create an obligation on the provider to reach a particular outcome. It is vital to remember that, in context, the right to freedom of speech is not, and should never be, absolute.

[Emma Hardy]

I apologise for returning to the previous point, but is the Minister aware how remarkable it is to have a group of different academics agreeing on one issue? It is truly remarkable; we achieved the almost impossible by getting them united on the issue of academic freedom. Therefore, it does seem rather preposterous that we have a Bill claiming to be about freedom of speech that does not include the two words “academic freedom”. I wonder, with the greatest of respect, what the point was of having all those witnesses give evidence if everything they said is disregarded, and the Government intend to stick with what they already published before those sessions.

[Michelle Donelan]

I refute the point that everything in the evidence was disregarded. The Government reserve the right to stick by their opinion, which is that this Bill will protect academic freedom and freedom of speech. Academic freedom is a subset of freedom of speech.

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If this amendment is not adopted, there is a real risk that free speech requirements would not apply to those spaces. It is as simple as that. We must ensure that this Bill is as good as it can be. We do not believe it is necessary, but if it is to go through it has to be as good as it possibly can be, and it is essential to include these sorts of details. This is a sensible proposal, and it is needed in practice.

[Emma Hardy]

I shall be extremely brief, Sir Christopher. Yesterday, in a meeting with the Jewish Leadership Council, I was reminiscing about my time as shadow Universities Minister, when I met the Union of Jewish Students. One of the points that it wanted to reinforce was the difficulty it had holding events because of the extortionate costs that can result from security, given some of the speakers it wished to invite on to campus. I therefore hope that the Minister takes this amendment seriously, because it seems to be a very simple way of allowing people to invite speakers who could be deemed controversial and require extortionate security costs, and to continue their events in the online sphere.

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[Sir John Hayes]

I beg to move amendment 71, in clause 1, page 2, line 2, at end insert—

“(3A) Any conduct that would otherwise constitute conduct having the effect of harassment in accordance with section 26(1) of the Equality Act 2010 shall, notwithstanding any provision to the contrary in that Act, constitute freedom of speech within the law for the purposes of subsection (2), provided the conduct constitutes, or forms part of, discussion of an academic or scientific matter in a higher education setting.”.

The amendment draws attention to the concern that was expressed during our evidence sessions about the possible relationship between this legislation and existing statutes, notably the Equality Act.

The point was raised by witnesses and I am particularly mindful of what Professor Biggar said when he spoke to us. He said that,

“the Bill is not proposing to amend the Equality Act. That is quite clear; however, there is tension between the requirements of the Equality Act and the duties to secure and promote free speech and academic freedom that the Bill would establish. The tension arises around the definition of harassment. It is quite right that those with protected characteristics should be protected from harassment. The problem is that harassment is often interpreted by universities—not so much by courts—in such a fashion that dissent from, disagreement with and criticism of becomes harassment.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 30, Q59.]

We heard something on that in the evidence from the National Union of Students. When I challenged the witness on whether she believed in the right to disturb or to shock and offend, she claimed she believed in free speech, but went on to defend the idea of no platform. She talked about vulnerable people. It is hard to know who these vulnerable people are. We cannot be talking about shy or reticent people—after all, the meek are so blessed they are going to inherit the Earth, so it cannot have been them—but there is a concern that the broadening of the definition of vulnerability and harassment could inhibit the intentions of the legislation.

Of course it is true that we all abhor offensive, discourteous and other unsavoury or unpalatable kinds of speech, but in a free society it must be permitted if it is lawful. It is necessary sometimes, as several witnesses told us, to challenge orthodox thinking. If orthodox thinking becomes so narrow that it prohibits those who question the status quo and the zeitgeist, nothing would ever alter. Most innovators through time, from Socrates onwards, have done just that. It made him very unpopular with Athenians—in the end, so unpopular that it brought about his demise. Indeed, I was reading Socrates this morning, on just that point—on Meno’s paradox. Let us not go into that, Sir Christopher; you will no doubt not let me depart from the subject in hand to that degree.

The amendment is straightforward. It tries to address the challenge identified by Professor Biggar and others to reconcile the legislation with the other requirements that will affect universities in its interpretation. Indeed, other witnesses from the sector draw attention to this more critically than Professor Biggar, who is, broadly speaking, in favour of the legislation. They suggest that it is a problem with the legislation per se, and they feel that it cannot be reconciled with the need to balance their legal responsibilities. I do not share their view, because I think it can be reconciled. The Government can help with that by clarifying the different responsibilities on the face of the Bill, which is what the amendment is designed to do.

The spirit in which the Committee operates will, I hope, be one of helpfulness, collaboration and scrutiny, so that we can improve the legislation. I can tell from what the Minister has said that she shares that spirit, because she has already said that she will go and think about things afresh during the passage of the Bill. Moreover, the work that she does with the new regulatory regime will reflect such further consideration, given the comments from members of the Committee, and no doubt in the other place and on Report. I am most grateful to the Minister for adopting that tone, and I hope she will do just that when she deals with my amendment.

[Emma Hardy]

Before I start, I want to say that I genuinely hold the right hon. Member for South Holland and The Deepings in high regard, especially since we discovered a shared love of skills and FE. However, I think the amendment is gravely mistaken. It is perhaps worth reminding ourselves of the explanatory notes on what constitutes harassment under the Equality Act 2010, so that we know what we are talking about:

“The first type, which applies to all the protected characteristics apart from pregnancy and maternity, and marriage and civil partnership, involves unwanted conduct which is related to a relevant characteristic and has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating the complainant’s dignity.”

I am not aware of any debate, discussion or event in a university that we could rightly say creates

“an intimidating, hostile, degrading, humiliating or offensive environment for the complainant”

or violates

“the complainant’s dignity”.

The second type is sexual harassment, which is

“unwanted conduct of a sexual nature”.

That is surely not something that we would want in a university. The third type is

“treating someone less favourably because he or she has either submitted to or rejected sexual harassment”,

which could indeed become the lecherous lecturers clause. The explanatory notes for the Equality Act 2010 give three examples of harassment:

“A white worker who sees a black colleague being subjected to racially abusive language could have a case of harassment if the language also causes an offensive environment for her.

An employer who displays any material of a sexual nature, such as a topless calendar, may be harassing her employees where this makes the workplace an offensive place to work for any employee, female or male.

A shopkeeper propositions one of his shop assistants. She rejects his advances and then is turned down for promotion.”

That is what we mean when we are talking about harassment under the Act, so we need to think about whether we should amend it for universities. Do we really want to encourage this kind of behaviour? It is important to state that universities are not separate from our community or our country. Something that is permitted when people are inside a university cannot become something that is suddenly not permitted when they step outside the university grounds. In fact, the best types of universities are those that I call civic universities—universities that do not just exist in their communities, but are part of them. Therefore, why do we need a separate law? It would mean that people could be offensive within the university grounds but would suddenly have to remember to be polite to their same colleagues when they step outside. We need to think incredibly seriously when we are discussing using the Bill to amend something as important as the Equality Act 2010.

[Sir John Hayes]

I am grateful to the hon. Lady for her introductory remarks about our mutual regard. The amendment does not do what she is saying. Clearly, universities have a responsibility under the Equality Act 2010 to counter, prevent and act on the kind of harassment that she describes, but Professor Biggar says that the risk with the Bill as it stands is in exaggerating harassment to include, as my amendment describes it,

“discussion of an academic or scientific matter”.

I entirely agree with the essence of what the hon. Lady said, but my worry is that the tension between the duties she has described and this legislation will be hard to reconcile for universities unless we are clearer in the Bill about that distinction.

[Emma Hardy]

I thank the right hon. Gentleman. I will not continue to give my opinion; instead, I sought legal advice on the amendment. The quote that I shall read is from the highly regarded human rights barrister and expert, Adam Wagner, who gave me permission to read out his statement in full:

“This is a bizarre and retrogressive amendment. All speech is already protected by ‘freedom of speech’, i.e. Article 10 of the European Convention on Human Rights, but that right is qualified and will always be balanced against the rights of others, the prohibition on discrimination and generally the interests of the public. The implication of this amendment would be that, for example, hostile and degrading antisemitic speech targeted at a Jewish individual—i.e. hate speech—during an ‘academic discussion’ would no longer be unlawful. A neo-Nazi could repeatedly refer to a Jewish speaker as ‘Jewish scum’ during an academic discussion and this could—on the face of it—be lawful, as would referring to a black speaker as ‘subhuman’ and so on. Hate speech has never been protected by free speech rights and I would not be surprised if this amendment, if it became law, was not ruled to be in breach of the UK’s human rights obligations by a court here and/or in the European Court of Human Rights.”

I completely respect what the right hon. Gentleman is trying to do with the amendment. Indeed, we need a full and frank discussion later on how we balance the different aspects of the Equality Act 2010 with the Bill and still allow free speech. With the greatest respect, however, the amendment should not be accepted.

[Charlotte Nichols (Warrington North) (Lab)]

I want to follow up on my hon. Friend’s comments about what the Bill means in relation to the Equality Act 2010. As someone who is Jewish, one of my key areas of concern is what it would mean for Jewish students—an issue I have raised a number of times throughout the passage of the Bill. I have raised concerns about what it would mean for Holocaust denial, after the Minister appeared to suggest on the radio that that would be protected speech under the Bill. In fact, we heard from witnesses such as Professor Goodwin that he would invite a speaker from the National Front or the British National party, if they were available, to address his students. We have heard evidence that that is what some academics would seek to do, if the Bill were in place.

We need only look at the British National party. Nick Griffin, along with a number of members of the British National party and the National Front, has been repeatedly prosecuted for hate crimes, incitement to racial hatred and Holocaust denial. Inviting someone with those sorts of views to address students on campus—for example, in a politics lecture—might mean someone like Nick Griffin laying out all the reasons why he believes that anyone who is not white British should be repatriated to a different country, why he believes that the Holocaust did not happen, and so forth. Clearly, if he made those remarks outside a university setting, in a discussion that was not about an academic or scientific matter in a higher education setting, he could be prosecuted for that, as he has been repeatedly.

The amendment would allow a loophole for Nazis, fascists and people who hold absolutely objectionable views. As we have heard, those people have, in the public interest, always had their right to absolute freedom of speech, qualified by that public interest, libel laws, the Equality Act 2010 and so on. The unintended consequence would be to drive a wedge in the Equality Act. Our university campuses would become less safe spaces than the street outside them, where those rules would still be in place.

Like my hon. Friend the Member for Kingston upon Hull West and Hessle, I have nothing but respect for the right hon. Member for South Holland and The Deepings, but if his amendment formed part of the Bill, it could have really adverse consequences.

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[Lloyd Russell-Moyle]

I totally agree. Again, that is the importance of the guidance. The Office for Students can sit down with other regulators and work out a settled opinion, which might be that there is not enough guidance for universities to interpret things correctly.

The right hon. Gentleman has mentioned a number of times the no-platform policy of the National Union of Students. That is a policy that bans National Action, a proscribed, illegal organisation in this country. It is a policy that bans Hizb ut-Tahrir, an organisation that is prevented from entering campuses under Prevent. It bans only a small handful of organisations—literally fewer than 10.

[Emma Hardy]

Six.

[Lloyd Russell-Moyle]

Six—I thank my hon. Friend. Those bans usually have national governmental guidelines behind them, because the organisations are proscribed under Prevent or under other duties. We need to be careful when we lambast the no-platform policy of the NUS, because it is a policy that furthers Government policy and guidelines for keeping our campuses safe. Sometimes the phrase no-platforming is used, but it is actually a policy that is implementing Government guidelines.

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

Emma Hardy Excerpts

Monday 13th September 2021 Public Bill Committees

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

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

[Emma Hardy]

[Emma Hardy]

[Emma Hardy]

[The Chair]

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[Sir John Hayes]

[Emma Hardy]

[The Chair]

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

Emma Hardy Excerpts

Monday 13th September 2021 Public Bill Committees

[Fiona Bruce]

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

[Emma Hardy]

[Emma Hardy]

[Emma Hardy]

[Emma Hardy]

[Emma Hardy]

[Emma Hardy]

[The Chair]

[Emma Hardy]

[Emma Hardy]

[Emma Hardy]

[Emma Hardy]

[The Chair]

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[Michelle Donelan]

[Emma Hardy]

[Emma Hardy]

[Felicity Buchan (Kensington) (Con)]

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

Emma Hardy Excerpts

Monday 13th September 2021 Public Bill Committees

[David Simmonds (Ruislip, Northwood and Pinner) (Con)]

Q I want to push you on this point about the effectiveness of non-legislative measures and how we compare the norms in different environments. I am not entirely convinced that Facebook, which is essentially an unregulated environment, would have the same norms as you would find in a university and the world of academia. I am not entirely convinced by that analogy, although I understand the point. Both of you have mentioned training and things like anonymisation of promotion processes as a way of addressing the issue, but presumably if those things were entirely effective and consistent, we wouldn’t be hearing the evidence about people suffering this chilling effect. Would you like to reflect on the effectiveness of those existing measures and any lessons that we as a Committee might need to take on board from what appears to be inconsistency in the way they operate?

Professor Layzell: As I said earlier, I think Universities UK would recognise that there have been cases where this approach has not worked as well as one would have wished. If the legislation is proportionate and does not create undesired side-effects such as more risk aversion, it may help to achieve a greater degree of consistency, but it is about keeping proportionality.

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

Q Thank you for your evidence, which has been extremely interesting. I am going to ask similar questions to those I asked earlier about the director of freedom of speech. In the past few evidence sessions, we have heard varying opinions on who the director should be, how they should be appointed and what skills or knowledge they should have. In your evidence, you referred to

“the desirability of the preferred candidate having experience of either the higher education or legal sector.”

Why do you think that is desirable?

Professor Layzell: I think because the challenges that vice-chancellors feel they face arise when situations are complex. A simple black and white issue of saying yes or no is not where the problem is. It is the confluence of a number of legal requirements that you need to get your head around. You have got to have that legal experience and/or experience of dealing with these sorts of situations in higher education. It would be wrong to think that these issues are very simple yes/no decisions; they are generally more complex.

[Emma Hardy]

Q I agree on complexity. In your evidence, you highlight where legislation must be taken into account: the public sector equality duty, the Equality Act 2010, the Counter-Terrorism and Security Act 2015, the Equality and Human Rights Commission, and so on. The University of Cambridge has argued for a gradated system of sanctions. Is that something that Universities UK would support?

Professor Layzell: Sanctions against offences?

[Emma Hardy]

So if the director of free speech was making a judgment on something, they would have a range of sanctions available to them, rather than just going straight for a tort.

Professor Layzell: Again, we would want the sanctions to be proportionate. I think I would look at it in the context of us all wanting to do better in this space. I think we have heard a number of times that there have been issues, so sanctions that encourage greater consideration, greater thought and learning from one another would be appropriate.

[Emma Hardy]

Q In the Bill as it stands, there is no right to appeal the decision made by the director for freedom of speech. We have already heard that it could be a political appointment, as the chair of the Office for Students is right now. The director for freedom of speech is judge and jury over decisions over universities, and as it stands there is no right to appeal. Do you think that is right?

Professor Layzell: I think we would have a concern.

[The Chair]

If there are no further questions from Members, I thank the witnesses for their evidence.

Examination of Witnesses

Danny Stone MBE and Hillary Gyebi-Ababio gave evidence.

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[Sir John Hayes]

Q Are these lawful organisations? Are you saying that you are in favour, then, of prohibiting lawful free speech in certain circumstances?

Hillary Gyebi-Ababio: No. I am not saying that I am not in favour of lawful free speech. I am not saying that at all. What I am saying is that the NUS supports, champions and cares deeply that free speech is championed, enabled and supported. To say that we do not agree with no-platforming where there are organisation like those I referenced with NUS’s no-platform policy that share and promote hate speech that hurts people from marginalised groups––to say that we do not support that is not true.

[Emma Hardy]

Q This is not just about free speech within the law. Conservative Members may not recall that the Minister wrote to universities asking them to adopt the definition of antisemitism. The Chair of the Education Committee has promoted, and asked universities to adopt, the definition of antisemitism. That definition is not law, so there are times when we want to restrict what people say that are not necessarily within the law. Do you want to comment on why adopting that definition is important, despite it not being law?

Danny Stone: There are two different issues here. Sir John, I found the your exchange earlier with Sunder Katwala really interesting because there are points in society where we turn round and say, “Sorry, this isn’t acceptable. There are societal standards here.” We do that with Ofcom. We do it with the British Board of Film Classification in our film regulation. We do it in other areas of public life where we say there are some kind of limits. That does not mean that the speech cannot happen, but Parliament sets a standard and it allows regulators, for example, to have a say on those standards. That is why I think that the complexities I spoke to should be on the face of the Bill.

I am pleased to have the chance to talk about International Holocaust Remembrance Alliance, so thank you. The IHRA definition is excellent and it was created––people may not know this––to try to bring uniformity for practitioners who were trying to understand why Jews were fleeing antisemitism and antisemitic terrorism in Europe. It helps to bring a standard of understanding to people. What it does not do––I disagree with Sunder’s evidence earlier––is to block people from saying anything. It is an advisory tool. It helps people to understand what antisemitism may be in a particular context. That is a very useful thing for universities, and the Secretary of State and the Minister have been very good in supporting the IHRA definition. But, as you say, it does help to guide what our expectations are around antisemitism, and presumably, if something is found to be antisemitic, we do not really want that. There is a societal standard that we aspire to. Sorry for a long answer but, yes, I do think that these complexities need to be addressed in the Bill.

[The Chair]

I realise that these are very complex issues, but I ask Members and the panel to try to be succinct because we still have an awful lot of people who want to ask questions. I will try my level best to let everybody in.

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.

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

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

Emma Hardy Excerpts

Tuesday 7th September 2021 Public Bill Committees

[Michelle Donelan]

Q Do you think it would be useful at this moment in time to clarify that the Bill does not prevent protest of free speech? I would be happy to have conversations offline or further written evidence on that.

Professor Whittle: It does not appear to, but combined with other legislation that has come in and the whole idea of what universities can do? What can a university do to stop people saying, “We don’t want this speaker.”? Can they stop it on Twitter? No. Can they stop it on Facebook? No. But they can stop it on the ground within the space of the university. I actually think that that is a much more valid place to hear student protests than on Twitter.

[Emma Hardy]

Q Professor Whittle, I want to turn again to the evidence submitted by the University of Cambridge, which highlights the tension that the Bill presents in balancing free speech with the existing legislation in the Equality Act 2010 against harassment, abuse and threats of violence. As I mentioned to Trevor Phillips in the last evidence session, the Secretary of State verbally promised that the right to lawful free speech will remained balanced by important safeguards, but the University of Cambridge is suggesting that that should be in the Bill, and the Bill should present greater clarity on where the line is drawn between existing legislation around harassment and what the Bill proposes. I wondered, with your experience in equalities, what your thoughts were on that.

Professor Whittle: The Equality Act provides little protection for anybody who feels that their rights are being disturbed by somebody else’s freedom of speech. For example, if somebody is speaking and they are antisemitic, unless it directly relates to that person, unless they have some sort of standing, the Equality Act cannot protect them as such. The Bill is interesting in that you do not have to have any standing to use the potential new provisions within it. I think that that is equally problematic, because it means that literally the butcher down the road could decide that they do not want the speaker, or could make a complaint that a speaker had had their freedom of speech challenged.

I think that that is very problematic, but I accept that it should be absolutely clear in the Bill that this is not about stopping legitimate student protest. There is a difference between legitimate and illegitimate protest, and illegitimate protest is always illegitimate in my view and should never be perpetrated, except in the direst circumstances. Legitimate protest, which includes shouting, making a noise and being an irritating bloody nuisance is just part and parcel of academic life. As I say, I have faced it in my own lecture theatre and I have not felt comfortable, but I did not feel so challenged.

[Emma Hardy]

Q That is really interesting. So you would want to see amendments to the Bill that gave students the right to continue to protest, and not therefore fall under the guidance of the Bill.

Professor Whittle: Absolutely. Legitimate protest within universities is an absolute must. If we make it different from the rights externally, does that somehow create a different space for universities? Universities are, on the whole, still part and parcel of the public sphere—not all of them, but most of them. They do not have the same rights, for example, as a pub landlord to say, “You can’t come in here,” but they have certain levels of control on their sites. To just bar student protest, or to make it impossible, would drive protest into those online spheres, and I think it would be much worse there.

[Emma Hardy]

Q Finally and quickly, I think I have almost achieved the impossible in that so far every academic has agreed. Do you share the concern around the change in wording from the original wording to insist that academics speak only about what the Government define as their field of expertise, in terms of academic freedom?

Professor Whittle: Absolutely. What do we count as our field of expertise? As a lawyer, as an activist, as an individual, as a parent, my expertise is widespread, and I bring all of those things into my academic life. If you told me that I could only speak on equalities law, I would say I have just done a big presentation in relation to the European Union and rights across the European Union. Does that not include me? Can I not speak on that? When the economists have a panel on free trade, can I not come and talk about how it impacts on different people’s rights across the world? Of course I can—that is part of our conversation, and I think that most academics would say that we do not sit in little boxes. We read widely; we bring all these ideas together. If we are very lucky, one day we will become Noam Chomsky and produce a great book, but most of us will just retire.

[Mr Richard Holden (North West Durham) (Con)]

Q Thanks, Professor. It has been really interesting to hear what you have to say. I was particularly struck that you said you had never felt that you had been unable to speak on a topic. Do you understand that 35% of academics in the UK, roughly twice the average of that in the European Union, according to a recent study, feel that they have had to self-censor their remarks? I understand you personally might feel that you can push ahead, but do you understand that other academics might feel that they cannot?

Professor Whittle: Yes, I accept that. If we go back 15 years to people complaining about the noise in the library, I stood up and said, “Why don’t you just ask them to stop? That is what I do.” They said, “It is all very well for you. You feel brave enough to do that.” I do not feel any braver than anybody else, but I am going in the library to work and I can ask the students to be considerate and quiet and, on the whole, I get a certain amount of listening to and respect out of that. If academics do not feel that they are able to speak out, I am very sorry they feel like that, but part of me wants to say, “Pull your socks up and get on and do it, because nothing is that frightening.”

I have spoken across the world, in different places, from Moscow to China and India, in circumstances where many people would go, “Oh my God—what are you doing?” but I have always received, on the whole, respect. There has been some heckling, but I handled it and never felt that my life was in danger in any way, shape or form. I sometimes have felt that my career has ridden a little bit close to the edge, but, as I say, I accepted a long time ago that other universities were not going to interview me, so I might as well make my mark here and I think I have been able to.

--- Later in debate ---

[Matt Western]

It does.

[Emma Hardy]

Q On that direct point—thank you for letting me come in—the Secretary of State said on Second Reading that this “legal route”, the “new statutory tort”, is “an important backstop”—

“we do not want all cases going to court where they could otherwise be resolved by other means.”—[Official Report, 12 July 2021; Vol. 699, c. 50.]

However, as you have just outlined, there is no requirement in the Bill to go through the internal processes before going to the freedom of speech tsar—or whatever title they are given. Is that of concern to you?

Smita Jamdar: I think there is a restriction on going to the freedom of speech tsar; I think they are proposing that you have to go through the internal complaints procedure before you go through the OfS’s complaint process. However, I do not think there is any such restriction on going to court.

[Emma Hardy]

Yes—sorry.

Smita Jamdar: I may have misunderstood; I do apologise. Yes, that is a concern. Built into certain types of court proceedings—judicial review, for example—is the expectation that you will first exhaust all alternative remedies, and that would include any internal remedies available under the complaints process. However, that is not the case in statutory torts; you could bring a claim outside the processes and the only thing that would then stand in your way is this—sometimes very vigorously encouraged—preference not to proceed with the court process but to go through the internal complaints process. However, you would still have issued and there would still need to be some reaction to that claim.

[Emma Hardy]

Q Would you therefore recommend an amendment to the Bill to make it explicit that local complaints processes should first be exhausted?

Smita Jamdar: Absolutely.

[Michelle Donelan]

Q I would be interested to know whether you think there are currently clear routes for individuals to seek redress where they do have their freedom of speech infringed on and restricted.

Smita Jamdar: The main route that you would see a student, for example, going through would be by way of judicial review. Judicial review has the advantage of allowing the court to make a declaration or requirement that the university should reconsider the case and, if necessary, readmit the student—they are entitled to go as far as that, but very often they will keep it to requiring that the case be reconsidered. They can also concurrently award damages, if you can prove that there is a loss associated with whatever has happened to you.

Our view, as a firm, is that if you had a situation where a student was excluded on the basis of exercising their right to freedom of speech, and it was a rightful exercise of the freedom and a wrongful interference with the freedom, then the clause permitting you to do that might also be regarded as a unfair term under the consumer contracts legislation, because you are losing a right that you have as a matter of general law. So routes are available. It is fair to say that the vast majority of these cases are probably dealt with at the internal appeals stage; I am not aware of a huge amount of case law that relates to students pursuing their claim. I think for academics it would be via employment tribunals.

--- Later in debate ---

[Lloyd Russell-Moyle]

Q On a slightly different topic—I would really appreciate your input here—you touched on employment law earlier. In the current employment law protections for academics, are there weaknesses that could be strengthened but are not being strengthened in the Bill?

Smita Jamdar: Again, people have highlighted the fact that in some ways, what the Bill is doing is narrowing what limited existing protection there is for academic freedoms—that is being narrowed. Currently, academic freedom is protected largely through the constitutional documents of universities. Chartered universities—those with royal charters—have to have a provision in their charters, and the post-92s have a provision in their instruments and articles of government. Those do not currently restrict academic freedom to matters within the expertise of the academic, and I know from speaking to employment law colleagues—one of the other things I am not an expert in is employment law—that there are often cases where there is a very vigorous disagreement about whether something was an exercise of academic freedom or not when it relates to criticism of the institution.

I think that the Bill makes it clearer, but probably, from the point of view of those who feel that academic freedom is inadequately protected, it is clearer by narrowing it rather than by addressing any of those wider concerns.

[Emma Hardy]

Q I am interested in hearing your opinions on a couple of things. Earlier, when you were answering questions from John, you were talking about tort and how the process works. I wonder whether you are supportive of the idea of the right to appeal decisions made by the freedom of speech director, as submitted from Universities UK.

Smita Jamdar: Absolutely. As I alluded to earlier, my concern about having a stop at the OfS is that that individual may be required to interpret law, so they may well be required to decide if something is defamatory, harassment, contrary to the Equality Act or potentially a public order offence. I find the idea that those legal judgments cannot then be appealed to the people who are actually able to make legal judgments really quite worrying.

Certainly, if that were to be the case, the process for appointing that individual, and the statutory requirements that must be observed for that individual in their role, need to be much tighter, because you could end up with somebody who is effectively an appointment of whatever Government is in place at the time, and who does not necessarily have any skills or expertise to make those judgments but is the last word on them. Again, in terms of freedom, that does not feel terribly free.

[Emma Hardy]

Q Absolutely. You could have someone who has lost an election and is put in a position of power by the Government of the day making the final decision on what is or is not freedom of speech, with no redress to court to change it. That is a little less free than the Government had perhaps intended.

On the OfS director, earlier we heard evidence that they would be giving guidance to universities and that their role would be in providing that guidance. Can you foresee a situation where a university follows the guidance by the OfS director of the day, the OfS director is changed, and the university is then told that the guidance it followed under the previous administration is no longer correct and it is liable for breaking the law under the Freedom of Speech Act? Do you see that there could be a difficulty with the OfS director being both the judge and the person giving the guidance?

Smita Jamdar: That is always a situation with potential for conflict, because how can you then judge impartially the complaint that comes in, even if it is another part of the organisation that is submitting it? Under the Bill, it would be within the oversight of the director, so there is definitely a problem there. Until quite recently I would have been confident that, as a matter of rule of law, you could not retrospectively apply conditions in that way. However, I am less confident about that than I have been in the past.

I think there are regulatory trends that say that people do sometimes try and retrospectively shift the goalposts. Normally, you would then potentially be able to go for judicial review, and say that this is a decision that is in breach of public law principles, either because it is irrational or in some way procedurally flawed. However, under the Bill you would not have that right because you cannot challenge the decisions of the free speech champions. Bearing in mind that we have to look at the worst-case scenarios, it is possible that, through change of policy, a piece of guidance that was given and followed is now no longer considered to be adequate.

[Emma Hardy]

Q I wonder what you would suggest as a solution to the OfS director—as is stated at the moment—giving both the guidance and being the judge. Do you think there should be a recommended separation?

Smita Jamdar: I would have thought that one of the most useful things the OfS could do is give the guidance, and look at this through its regulatory lens. Having seen how regulation has started to change behaviour at universities in other cases, that might be where we see most of the cultural change we all feel is at the root of this.

The two obvious things that would change the position would be to build in additional safeguards, so that the freedom of speech complaints process is dealt with separately to the guidance. However, that then calls into question the role of the director—it is quite a fundamental shift. Another thing you could think about is saying that if the challenge is about the lawfulness of the speech, rather than some other breach of process, then that has to first go to court before the OfS can adjudicate on it. Then, at least, legal issues are dealt with by someone else—they are not dealt with by the OfS. The final thing would be to introduce a level of judicial oversight into what is happening, so that any particularly difficult and egregious cases could go to court and say that the OfS has not done its job in the way that Parliament intended.

[Emma Hardy]

Q I promise that this is the final question—although I did say that last time. Would you therefore recommend that the OfS director should be someone with a legal background, if not an in-depth knowledge of higher education?

Smita Jamdar: I would definitely say that the OfS director should have a legal background because there is so much law in here to get your head around. My preference would be to say that that person is not allowed to make legal decisions—even if they have a legal background. It just strikes me as conceptually a very difficult idea; somebody who is not a court and not a tribunal making legal decisions. That should not happen. I would go one step further and say take that out of the role.

In terms of understanding the higher education sector, I know that there is always a concern that if you bring in people who are too familiar with the sector then they will not be impartial about these issues. However, everybody in the sector recognises the importance of free speech. The problem is that there are a small number of areas that are highly contested, where different people have different views about what free speech should be. I do not think knowledge of the sector would prevent someone from being able to judge those things impartially. In fact, it might help, because it would speed up understanding the context where this is all taking place.

[The Chair]

If there are no further questions from Members, I thank Ms Jamdar for her evidence, and we will move on to the next panel.

Examination of Witness

Thomas Simpson gave evidence.

--- Later in debate ---

[Michelle Donelan]

Q What importance do you place on the role of the director, which this legislation will create?

Thomas Simpson: As I read the Bill, and certainly I suppose in my vision, the director plays a co-ordinating role for the OfS’s functions, but the director’s decisions should not be decisions that the director makes individually; they are decisions that the board would sign off on. As I have discussed earlier, I think there is a legal recourse for testing what the director’s decision should be. But the director should be someone who is active, who is energetic and who wants to drive this.

One of the other questions here at stake—it is one of the missing pieces from prior evidence—is that we have a very valuable document from 2019, the Equality and Human Rights Commission’s guidance on free expression. That really carefully walks through very practical details of how the section 43 freedom of speech duty should be implemented in particular situations. Ten key public bodies were brought in to agree to that guidance. There is both a process and an end point that is similar to that for the wider question of academic freedom that the Bill sets out provision for.

There is an outstanding question, which people are right to ask: what is the relationship between this and the Equality Act? In practice, the EHRC guidance threads the needle on most of those issues, and there will be a comparable process for academic freedom more widely.

[Emma Hardy]

Q Welcome. I have a few different questions. Picking up on your point about the Equality Act and how they interplay, would you recommend greater clarification of that in the Bill? I know that we have been promised guidance to follow, but it is very interesting, looking at the evidence that has come out. There seems to be a bit of a coalition between the Free Speech Union and various universities that that clarification is needed. I wondered what your thoughts were.

Thomas Simpson: In the ideal world, that would be great. I do not know what the appetite is within the House of Commons for pressing on that, but I think it would be valuable, were it possible. The EHRC guidance generated considerable consent on how that relationship should be managed in practice. As an advocate of academic freedom and free speech, I think it does so in a way that is respectful of both the demands of the Equality Act, right and proper, and those of academic freedom.

[Emma Hardy]

Q The concern that I have read in the evidence is that it could be left to individual universities to try to manage what is freedom of speech versus somebody’s rights under the Equality Act.

Thomas Simpson: In my view, the greatest challenge is awareness within the sector of what the Equality Act requires and, particularly, what it does not require. That is something that the EHRC guidance does a really good job on. I would leave it to the legal people to say whether that should be in the Bill, but it seems to me that the question of how to adjudicate that has already been quite carefully thought through.

One of the areas of extension that has not had the same consideration, and one of the shortfalls of the guidance—this is not a criticism of it, because it fulfils its purpose—is its scope. It focuses only on the section 43 duty as was. There is a wider set of questions about academic freedom, and freedom of teaching in particular, that it does not address.

[Emma Hardy]

Q To press further on that, at the moment the universities have this question of fulfilling freedom of speech “within the law”, but they of course have to adhere to non-statutory guidance as well. Do you think that needs greater clarification? What guidance exactly are universities meant to follow on protecting free speech “within the law”?

Thomas Simpson: That is not an issue that I have considered previously.

[Emma Hardy]

Q Okay. Finally, I dare not provoke the wrath of Sir John by using the words “unconscious bias training”, but you seem to suggest in your role that people unconsciously choose people who are like them and have similar thoughts to them for roles. Do you think that legislation can address the unconscious bias that people have?

Thomas Simpson: Pass—that is a very wide question. I certainly envisage that part of what will be involved in fulfilling the duty to promote academic freedom would be something like holding and convening events for freshers to think about how a university functions, and what it looks like to promote a place of free debate. My understanding is that it has proven very difficult through direct unconscious bias training to unpick that, but someone who is better versed in the evidence could speak to that.

[Emma Hardy]

Q Do you think the Bill as it stands addresses the unconscious bias that people have? We will not mention training, Sir John.

Thomas Simpson: Whereas 30 years ago you might have had a situation where in a small business people said, “We don’t want to employ X because maybe she’ll be pregnant in six months’ time”, people now would rightly be very cautious about saying that, and ought to be, and they ought not to believe it. The fact that we have come to that position is in part due to anti-discrimination legislation, which has helped bring to people’s minds the dangers of thinking in that way.

One of the challenges that we need to think through in the sector is avoiding the risk of partisan thinking, because such thinking, whatever partisan tribe you are sucked into, generates the possibility of seeing people as indicative of a particular tribe that you might not like. Over time, that norm should embed itself. That is the view and the vision.

[Emma Hardy]

Q So there is nothing explicitly within the Bill other than your hoping that in 10 years we might see an impact.

Thomas Simpson: No, it provides for the means by which that would happen. The functions of the director of free speech are to identify good practice and give advice on how that will take place. I think the vision is that the advice on what that good practice is would be what is required to fulfil the A3 statutory duty to promote academic freedom. Universities that are taking that advice would then start to implement that form of training, whatever it is.

[Emma Hardy]

Q So you see the bonus as being the advice that is given. Is it not possible for the OfS to give advice on something without having to legislate?

Thomas Simpson: I think the crucial thing is that the legislation puts it within the OfS’s remit. It mandates that this should be within its remit. I think it was already within its remit beforehand; it just was not being carried out.

--- Later in debate ---

[Fiona Bruce]

Q In your evidence, you say that you

“believe Parliament should decide, in this Bill, how this conflict is to be resolved”—

the conflict being that between whether provocative speech is free within the law or conduct having the effect of harassment. Can you clarify that, because this is a really complex but very important issue in our deliberations on the Bill?

Dr Harris: I will be as succinct as I can. Opponents and supporters of the Bill can hopefully find agreement that it potentially puts VCs and universities in a very difficult position. It will create borderline cases where it is difficult for the university to know whether in allowing an event to go ahead they may open themselves up to liability for harassment. It may be harassment of employees, for instance. Alternatively, if they decide that it is not quite harassment, could they then be sued because they failed to secure freedom of speech?

This is the result of the duty being essentially parasitic. It says that you must secure free speech as the law defines it. The Bill does not amplify or further define the right to free speech. I think that there is a conflict there. I do not think that it is fair to just lumber it on universities. I think there is a danger of universities responding by being completely risk averse—becoming simply anodyne—and I think it is for MPs to show some thought leadership. We have these two incommensurate values: the prevention of offence related to protected characteristics and protection of free speech, and I think it is for MPs to decide how we reconcile those two values. I do not think we should outsource the decision to universities.

[Emma Hardy]

Q Interestingly enough, those were the points that I was going to cover. That is interesting indeed, with your comments about the competing obligations under the Bill and the Equality Act. I know you have suggested that MPs resolve this, but, looking at some of the other evidence that we have had, would one step towards that be to make it explicit on the face of the Bill that universities, in doing this, must also take equality legislation into account, along with some of the non-statutory guidance—Prevent, and all of those other things? My concern is that none of that is in this at all.

Dr Harris: I think that there are a number of options. In the Bill at the moment, the OfS has the power to issue advice. However, as you say, there is nothing equivalent to the Counter-terrorism and Security Act 2015, whereby the university will be under a statutory duty to give due regard to that advice.

There are a number of options. One would be that there be new guidance, perhaps from the OfS and the Equality and Human Rights Commission, setting out clearly the scope of the Equality Act, when it is not a justifiable grounds for infringing free speech, and the true extent of a university’s liability—for instance, like the fact that universities are not liable under the Equality Act for what their students do. That is quite important. That is a good, soft way of doing it, but the potential drawback of that is that the Equality Act is already fairly clear in its definition of harassment in section 26, in that it has this safeguard of

“whether it is reasonable for the conduct to have that effect.”.

What we are seeing in relation to reporting websites where students can report harassment—it was seen at the University of Essex, regarding Rosa Freedman and Jo Phoenix—

[Emma Hardy]

Q I am interested in the Bill, rather than having a Second Reading debate on whether we should or should not have this. As the Bill stands, it does not contain anything about universities having to take account of existing legislation. It just says “within the law”, which feels a little vague to me.

With your comments acknowledging these competing obligations, my question to you is more, as a lawyer, how can that be remedied in the Bill? Could there be a concern over primacy with new case law existing outside universities, and what an OfS decision is, in terms of interpretation of the Equality Act and interpretation of this?

Dr Harris: The Equality Act is already is there by virtue of “within the law”, so it does not need to be explicitly stated. A university will have no duty to secure the right to harass someone, and it will not be in breach of the Bill if it censures an academic for discrimination or harassment. That is already there, in the Act. I am saying that one way to resolve the potential conflict that we were talking about, between the Equality Act and this Bill, would be to have guidance to help universities navigate this very fine line.

That is one way of doing it. The other is for Parliament to re-clarify the definition of harassment with relation to universities. I accept that getting into the Equality Act is very controversial and tricky terrain, but the explanatory notes of the 2010 Act, as enacted, quite clearly say that in making findings of harassment, courts should take into account academic freedom. I think there is a lot that can be done that would not substantially change the Equality Act, but that would clarify how it applies in the academic context.

[Emma Hardy]

Q It is interesting, because in some of the evidence that we have had from the universities, they have asked for that clarity. They said that,

“absent further clarity in the Bill, this would be an untested assumption, and an HEI/SU relying upon this assumption may carry a greater risk of being exposed to a free speech challenge”.

They were requesting that clarity in the law, so your comment is interesting.

Dr Harris: Universities often go beyond what the Equality Act—

[Emma Hardy]

Because they have the Prevent legislation and much other non-statutory legislation that they are expected to follow.

Dr Harris: That is correct. I have not yet seen evidence of over-application of the Prevent duty—at least I have not seen it, and certainly one sees more of that in schools—but, first, universities need to agree on what the Equality Act actually requires of them. They need to—

[Emma Hardy]

Sorry, it is not just the Equality Act. Universities are expected to follow a number of statutory measures and non-statutory guidance. My concern with that—one shared by a number of people—is that it could have a chilling effect, with universities being risk averse.

Dr Harris: There will be a balance of competing obligations. That will always happen. One thing that I would certainly say is that, realistically, the risk in most cases will be quite low. Universities are not really dangerous places. It is not like serving in the infantry. There will be some instances where it is borderline, where it is very difficult to sort out a conflict between two competing obligations. One way to minimise the problem that you are talking about is for universities to start taking a more pragmatic approach to those liabilities. For example, if you look at a number of external speaker policies—they are essentially codes of practice under section 43—you would think that putting on an academic talk was a terribly dangerous event.

[Emma Hardy]

Q I am going to tie you down to talking about the Bill, because we are running out of time. Your recommendation, therefore, would be for guidance to clarify that possible tension between what the Bill is trying to do and existing legislation.

Dr Harris: That is one proposal. I think that universities would probably ignore it, just as they have ignored the Equality Act—

[Emma Hardy]

I was referring to guidance from the Bill, but okay.

Dr Harris: It is one option. You can create a duty to have due regard for guidance. That is one option. For universities, it would not be enough to get them—

[Emma Hardy]

Q You would want it in the Bill.

Dr Harris: One thing you could do is to amend the Equality Act in the Bill to state that, in the academic context, universities must have due regard—

[Emma Hardy]

Q As we said, it is not just the Equality Act but all the other pieces of legislation. Would you wish to amend them all through the Bill?

Dr Harris: No. Because I do not think that they pose the same difficulty and there is not as much systemic overreach.

[Emma Hardy]

Q Finally, the online safety Bill will be going through Parliament. What thought have you given to that Bill, how it will potentially limit freedom of expression and how it interacts with this Bill going through Parliament at the same time?

Dr Harris: I have not really thought about how it interacts with this Bill. Certainly I have considered it otherwise. There needs to be a joined-up approach between the various instances of reform. The danger is that we end up with an anomaly. For example, Twitter’s house rules under the online safety Bill will have to be consistent with Ofcom codes of practice. There is a danger that something might be perfectly allowable under Twitter’s house rules, but unlawful in some other way.

[Sir John Hayes]

Q Notwithstanding Kevan’s point about university charters, is the real issue not about policy making? While it is true that a university in its charter is committed to openness and free expression, in policy making the story is far from that. Is it not really the case that universities persistently misinterpret the legal definition of harassment and underestimate freedom of expression and openness in their policy documents? You talked earlier about balance. Isn’t the question about this Bill not the effect it will have on law, in the sense of legal cases, but more the effect it will have on universities looking again at their policies and policy-making process?

Dr Harris: Yes, I very much agree. I think that what the Bill needs to do—this fits with the previous question—is elevate freedom of speech to the policy decision-making process, or the matrix, so that it is one of those considerations that is always baked into decision making.

To give you an example, the University of Cambridge launched a really quite restrictive reporting website where it asked staff and students to report micro-aggressions, which could include raising your eyebrows and that sort of thing. Now, the FOI request that we did on that showed that there were something like 400 pages of planning, correspondence and decision making about this report and support website. How was there so much consideration of this policy, and at no point did anyone step in to say, “Is this compliant with our legal free speech duties?” It is this absence from decision making. I think all this Bill needs to do to be successful is to cause a momentary pause. It needs to cause a degree of reflection.

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.

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

Emma Hardy Excerpts

Tuesday 7th September 2021 Public Bill Committees

[Michelle Donelan]

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

[Emma Hardy]

[Emma Hardy]

[Emma Hardy]

[Emma Hardy]

[The Chair]

--- Later in debate ---

[Felicity Buchan]

[Emma Hardy]

[Emma Hardy]

[Emma Hardy]

[Emma Hardy]

[Emma Hardy]

[Emma Hardy]

[The Chair]

Covid-19: Education Settings

Emma Hardy Excerpts

Tuesday 6th July 2021 Commons Chamber

[Gavin Williamson]

I can absolutely reassure my hon. Friend that that is the case. High-quality tutoring, with the roll-out of the national tutoring programme that will have a positive impact on so many, is one of the absolute top priorities of this Government. It is the single thing that can probably have the biggest impact on helping children to catch up on lost learning. That is why we are making such a substantial investment in it.

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

What are the Government doing to prevent the chaos of last year by ensuring that all higher education students can receive both vaccinations before moving around the country to their university? How will the Secretary of State ensure that those turning 18 late in this academic year are offered both vaccinations before they move to university?

[Gavin Williamson]

The hon. Lady raises an important point. That is why we are so pleased that we have been able to say to all those who are 18 and above that they have access to a vaccination. We are working very closely with the university sector to really get the message through about how important it is for youngsters—students—to be out there getting their vaccine: it protects not only them, but their friends, their family and their community.