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

Felicity Buchan Excerpts

Tuesday 7th September 2021 Public Bill Committees

[Lloyd Russell-Moyle]

Q How do you limit people applying political pressure? What you are saying is that the regulator needs to come in and say that the university has not limited other people’s ability to apply political pressure. I get that universities should have guidelines about balance and civility, but if it breaks down and the regulator steps in, what is the regulator actually checking? That the university has not restricted other people’s political expression?

Trevor Phillips: There is no right to a backlash. In common law there is a right to protest in this country. I would have gladly seen something in this legislation that referred to that, but the truth is that we do have that right. The issue here is of culture and resilience. For far too long—10 years—I was chair of two regulators: the Commission for Racial Equality and the Equality and Human Rights Commission. Most of our work was not prohibitive; most of it was either permissive or educational. The EHRC publishes books and books of guidance, some statutory, most non-statutory. The aim of that kind of guidance is not to impose threats and hammers, but to give some idea of what the right norms are. That is why this is so important. There is a variety of informal ways in which freedom of expression can be suppressed without breaking any law that you could possibly draft.

Alongside the legislation, there has to be a programme of action to protect diversity of opinion within the higher education sector. That is part of the role of the regulator. The regulator is not a censor; it is there to moderate behaviour, and there are different ways in which that regulator might moderate behaviour. Some of it will be by prohibition and law, but most of it, for every regulator, is through guidance, encouragement, comparison, publication of best practice, and so on.

We ought not to get into a conversation where we simply think of this regulator as a revived Lord Chancellor, with his or her blue pencil, swooping on every campus, looking out for bad guys. The big part of this regulator’s work will be publishing work that demonstrates best practice and the code by which university authorities, and those who are under their aegis, can best guarantee and promote diversity of opinion and freedom of expression.

[Felicity Buchan (Kensington) (Con)]

Q One of my concerns is self-censorship and the degree to which it already exists, not only among the academic body but also among the student body. By definition, it is quite difficult to measure self-censorship and the extent to which it exists. Could you outline how large a problem you believe it to be?

Professor Biggar: You are right that, by its nature, it is hard to detect and measure, but there is plenty of anecdotal evidence, and I can tell you from my own experience. The clearest evidence of fear and self-censorship among academics was mentioned by Arif Ahmed earlier: his experience in Cambridge of spending a month trying to get 24 academics to put their heads above the parapet to sign a bit of a paper backing a motion against university policy. It took him a month to get 24 people to do that, but when the vote was held by secret ballot, it went overwhelmingly against the university, by several hundred academics. When those academics were liberated to express their views in secret, they did it, but they would not do it in public. That is one instance, but I think it is a signal instance. I urge you not to underestimate the degree of fear, even among senior academics.

Trevor Phillips: Yes, I agree with Professor Biggar. It is pretty difficult—like proving a negative. People who are too frightened to express their opinions will not tell you that they are too frightened to express their opinions. However, we do know that there are many examples.

Personally, I am a bit less concerned about the issue of meetings not being held and so on, and far more concerned about the extent to which academic and intellectual inquiry is being curbed by a culture that says “This thing will be controversial and too much hassle. I’m going to put my effort into something that nobody’s going to argue very much about.” That, I think, is a real, huge danger for the higher education sector in this country. We have lost what the Americans would call the “speak up culture”—the pleasure in disputation and the belief that testing arguments will always improve the state of knowledge. If there is a job for the regulator, it is to restore the confidence of all the members of university communities that it is okay to take a view; that, essentially, it is okay to say things that you know might offend other people, if you believe them to be correct. I do not think we want to encourage gratuitous insult or unnecessary offence, but above all, our institutions are there to encourage intellectual inquiry.

One practical step that might be embodied in the guidance, if not in the legislation itself, is that the default position in universities when it comes to meetings in particular is that they should always be open to all members of that community, so that every point of view is open to challenge. That is at the heart of this: there should be a culture of challenge. Secondly, what we have tried to do at Index is to help students to learn the habits of resilience that allow them to participate in those robust debates.

[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.