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

Fiona Bruce Excerpts

Tuesday 7th September 2021 Public Bill Committees

[Fiona Bruce (Congleton) (Con)]

Q Dr Ahmed, in your evidence you say that there are several threats to free speech in higher education. You talk about two: self-censorship and regulation. Could you unpack those a little more, and tell us how widespread those problems are and what evidence you have of them?

Dr Ahmed: With regards to self-censorship, I mean something similar to what I said to the Minister when I mentioned self-censorship: people simply not saying things that they think on matters that are important, or not pursuing lines of research that they think might be fruitful, because they fear the consequences, whether that is full disciplinary action or some other form of ostracism, such as being overlooked for a promotion or various other things. That is what I mean by self-censorship.

The principle bulk evidence that I have is from the University and College Union survey of 2017, which was included in the report for the UN in 2019. It says that 35.5% of UCU members who answered the survey said that they self-censored, compared with something like half that percentage for the rest of what was then the EU.

That is roughly what I mean by self-censorship. I have come across plenty of examples of that. When I was campaigning for the liberalised free speech policy at Cambridge, many people said to me that there are a whole range of issues—from issues to do with race, with transgender, and with Israel and Palestine—on which they were simply unwilling to say what they thought because they feared the consequences. Those are obviously matters of huge importance. That was the first thing—self-censorship.

The other thing that I mentioned was regulation; perhaps I should say micro-regulation, because what I mean is universities placing formal obstacles in the way of people saying things that are perfectly legal.

To give one example, my own university recently put forward a policy, which has now been withdrawn, on discrimination and harassment, which included a variety of things regarded as micro-aggressions. These are things we should avoid. None of them is illegal, as far as I can tell. In fact, on some of them, particularly the one in my case to do with religion, if I had actually heeded that policy it would have impeded my own teaching and professional activity.

[Fiona Bruce]

Q You say that the Bill, although plainly not enough in itself, could be a first step

“towards recreating a culture of robust and completely open debate without which a university education loses much of its point.”

How effective will the Bill be in achieving that, and what more do you think needs to be done?

Dr Ahmed: With regards to how effective I think it will be, I would look at the Equality Act 2010 and the way in which that has created over the last 10 years a change in the culture of higher education institutions. It was not immediate; it was gradual and it occurred through the institutionalisation of certain values. More generally, the most important thing in human life, the most important determinant of human behaviour, is habit. If we get into the habit of speaking freely and of thinking about these things at all times, eventually it will feed into our values and into our ways of thinking about what a university should be, so I am reasonably optimistic. Obviously, it is an empirical question and there is a paucity of data, but in some way the 2010 Act gives me some hope.

[John McDonnell (Hayes and Harlington) (Lab)]

Q Professor Stock, on a point that you raised, you are right that we need to ensure that freedom of speech in the academic field is regularly debated. We need to remind ourselves of the critical importance of it as well. My concern is that sometimes in Parliament we see an issue and we rush to legislate, which is not always well thought out as a result of the lack of preparation and consultation. The famous Dangerous Dogs Act 1991 is an example.

You expressed concern about some elements of the Bill. The Bill itself lays a huge range of conditions on student unions and university and academic institutions, and then it brings in potentially draconian sanctions, but we do not know what the sanctions are yet. They all reside at the moment with the Secretary of State. Do you share my view that if the Bill is to proceed, we have to be careful about unforeseen consequences? If we place a duty on a body, there should be a mechanism to ensure that the duty is exercised effectively and under advice as well. There are no advisory structures set out.

For example, you cited in your evidence various incidents that have taken place. There is no mechanism by which you can advise on how things can go forward. In addition, with regard to the sanctions, my worry is that although others might have confidence in the Secretary of State, I have never had confidence in any Secretary of State without direct accountability to Parliament that is open and transparent. At the moment we do not even have a schedule of what sanctions could be levied against institutions and individuals as well as student union bodies. In addition, we have introduced another opportunity for claiming a tort instead of going for a breach of duty as well, which is broadly framed in the Bill but is not specific.

When you raised this question, it struck home with me. Do you believe that there should be elements in the Bill that give us more guarantees about its implementation so that it is effective, accountable and transparent? That means building in mechanisms for future advice. It means being more explicit about the nature of the sanctions and how they operate. To be frank, if I were an administrator at one of these bodies at the moment, I would be working in the dark about how the Bill will be implemented.

Professor Stock: I can see that it is a risk. In a sense, every time you legislate, I assume you are a hostage to fortune to some degree because there is always—

--- Later in debate ---

[The Chair]

Fiona Bruce is next.

[Fiona Bruce]

Q Thank you very much, Sir Christopher. It might be very helpful if we could continue this discussion, because I wanted to draw out from you, Professor Biggar, two points where you say that the Bill could be improved. Could you perhaps give us a little more information about your thoughts on this comment:

“In its current form, the Bill would still allow discussion in an academic context to attract allegations of having the effect of harassment under section 26 of the Equality Act 2010.”

Could you elaborate on your thoughts, please?

Professor Biggar: First, 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. That is obviously a dampener on free speech. The Bill will not resolve that, but I am sure that the OfS, through the director for freedom of speech, will have to discuss with the university how the Act is interpreted in the light of this legislation. The effect of this legislation would be to underscore the free speech and academic freedom elements, and might result in a more conservative interpretation of the Equality Act.

[Fiona Bruce]

Q I wonder whether you could consider whether the words “within the law” at the very start of the Bill, which is such an important clause, could perhaps be replaced by the words “without unlawful interference”. Would that help to address the problem of the, very often, broad interpretation of harassment, which effectively appears to bring speech that is within the law outside it?

Professor Biggar: That is a very fine distinction, the significance of which escapes me for the moment.

[Fiona Bruce]

Q The problem that you are raising is that there is quite a broad range of statements that could be not protected by the Bill because they are considered harassing. That is an issue that perhaps needs to be looked at.

Professor Biggar: If that is a tighter definition, then yes.

[Fiona Bruce]

Q Thank you. The second point that I want to draw out is that you say that the Bill does not give academic staff access to affordable justice via an employment tribunal in the case of failure to be appointed. Do you think that the legal remedies proposed in the Bill are sufficient? Perhaps you could again talk about where the right to go to an employment tribunal might help in certain situations.

Professor Biggar: As I understand it, at the moment the Bill allows civil proceedings, but appeal to the courts is expensive and risky. It seems to me that academics who have lost their job ought to have readier access to lodge a complaint than through the courts. I am not a lawyer, but that seems to me to be the case.

[Fiona Bruce]

Q Very briefly, in your experience, you believe that there is a real issue to be addressed in terms of freedom of speech and loss of employment or tenure.

Professor Biggar: Yes. The case of Noah Carl, as I mentioned earlier, is an egregious case. I cannot talk about the details of the case, but from what I have read a request has been made about it, and he did not have ready recourse to remedy.

[John McDonnell]

Q David Simmonds registered an interest as an honorary fellow of Birkbeck—so am I. I did not realise that it was a registered interest, or that anyone would be interested, but anyway. Trevor, this is for you really. You have raised the issue of Chinese students, which I think is important. I want to explore it. One of the issues around legislation is ensuring that you do not build into it contradictions that will come back at a later stage and cause problems. I am a campaigner for exposing what is happening to the Uyghur people, which some are describing as a genocide.

My concern is this: I think you are right about the influence on Chinese students at the moment. The National Union of Students has a list of organisations that reflects Government views about terrorist organisations, and so on, that you would not wish to use any form of premises to promote their ideas. For example, in the Uyghur case, if the students through the National Union of Students or their local student body consult or even ballot and come to a view that they do not wish organisations associated with the Chinese Communist party to use their premises to promote or defend what is happening to the Uyghur people, which many now believe to be genocidal, surely there must be a mechanism in the Bill to enable that expression of view to have effect. Those sorts of meetings could intimidate Chinese students on university campuses and elsewhere.

Could the Bill could be improved by having some form of mechanism to enable that element of flexibility? The Office for Students—the director for freedom of speech—could ensure that there is a proper and effectively exercised mechanism to ensure that such consultation takes place. Therefore, we could have a range of limited exemptions where we do not wish in any way to use resources—whether student union or university resources—to enable the promotion of something that might be speculative to some, but is certainly not to some of us, which is the genocidal attack on the Uyghur people. I put the question to Trevor, as he raised it—it is a real-world issue for many of us.

Trevor Phillips: It is a really important point. I have an immense amount of sympathy with what you have just said. Were I a student today, I would without any question whatever be campaigning to have a student union decision that any facilities under the control of or paid for by—although I know they do not have union subs any more—my student union were not used in any way, however indirectly, to support the actions of the Chinese Communist party in Xinjiang. In so far as that is concerned, I am completely with you. I do not think that you need legislation for that. Every student union has a general meeting or a council that can decide that that is what it wants—