Higher Education (Freedom of Speech) Bill (Sixth sitting)
Debate between Fiona Bruce and Emma Hardy(2 years, 7 months ago)
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Fiona Bruce
I hear what the hon. Gentleman says. I would like to think that the very concerning case of the midwifery student is a case in point.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
I recognise the point that the hon. Lady is making. My concern is with the definition of academic freedom applying to academics and therefore not being applicable to students. I draw her attention to my amendment 44, which would insert the words
“and in the conduct of research”
to cover PhD students and other students involved in research. The point my hon. Friend the Member for Brighton, Kemptown was making was that we cannot say that academic freedom, in its entirety, which belongs to academics, can apply to every student, whereas students involved in the conduct of research behave more like academics, so it could apply to them. That is my issue with the amendment.
Fiona Bruce
I thank the hon. Lady for that gracious intervention. It is a pity that I cannot speak to amendment 60 in the same moment, because I think that would help clarify my reasoning for this amendment. I am concerned that without the express inclusion of students, there is a risk that those most vulnerable to self-censorship and adverse consequences in academia, such as being marked down, will remain unprotected.
There is the argument that freedom of speech, as referred to in the Bill, is sufficient to adequately cover students without the need to cover them through the term “academic freedom”. However, I would question that, as demonstrated by the examples I have given involving Professor Biggar and the midwifery student. I look forward to the Minister’s comments and ask her to consider the amendment as the Bill progresses.
Fiona Bruce
Will the hon. Gentleman reflect for a moment on the position of doctoral students, which was mentioned by Professors Goodwin and Kaufmann? A student studying for a doctorate has considerable expertise in their field and, at the same time, might be tutoring some more junior students—undergraduates. Is it not a somewhat distorted situation and a strange irony that they could claim the protection of academic freedom for anything said in the tutoring, but not as a doctoral student?
Higher Education (Freedom of Speech) Bill (Third sitting)
Debate between Fiona Bruce and Emma Hardy(2 years, 7 months ago)
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Fiona Bruce
Q
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
“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.
Higher Education (Freedom of Speech) Bill (Third sitting)
Debate between Fiona Bruce and Emma Hardy(2 years, 7 months ago)
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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.
Higher Education (Freedom of Speech) Bill (Second sitting)
Debate between Fiona Bruce and Emma Hardy(2 years, 7 months ago)
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Fiona Bruce
Q
“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
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—
Higher Education (Freedom of Speech) Bill (Second sitting)
Debate between Fiona Bruce and Emma Hardy(2 years, 7 months ago)
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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.
Fiona Bruce (Congleton) (Con)
Q Good afternoon, and thank you for coming to speak to us, Mr Simpson. You have written extensively on this issue, including a substantial paper you co-wrote in 2020 entitled “Academic freedom in the UK”. You wrote that you were focusing largely on improving oversight of academic freedom to ensure compliance with existing laws. I would be interested to know whether you feel that the Bill will satisfactorily improve oversight by governing bodies of higher level educational institutions, and whether it will also provide satisfactory extra university appeal mechanisms.
Thomas Simpson: One of the really urgent amendments to the Bill, in my view, relates to the opening duty, what you might call the source duty, in clause 1. The point has already been made, and I think that there is some truth to it, that the Bill changes the emphasis of the statutory duty—I do not think intentionally. If we look at the detail, it states:
“The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom speech, are reasonably practicable for it to take”.
I just want to focus on the governing body issue. It focuses the statutory tort from which everything else follows— the statutory duties—on the steps that the governing body must take rather than on the way that constituent parts of the university conduct themselves.
Let me just put that in concrete terms. Suppose there is a case in which someone is not appointed because they are judged to have the wrong view on whatever issue, and they wish to test this and they have evidence that makes them think that is the case. What that person wants to do is test in the courts, “Did I not get the job because of my view?” That is what they want to test. What the statutory duty implies is that the courts will ask, “Did the governing body take the steps that were required to stop that happening?” Okay. That is a very, very different thing. Testing that is asking, “Have they had a discussion on the governing body of which there are minutes to record this happened? Did they put the right training in place? Did they appoint the right people? Is there some error that they have made?” What wants to be tested is whether the individual was treated unfairly in some sort of way.
Sending in the report, we advocated for a direct duty to be placed on higher education providers and not on the governing body of it to take steps. That is a really vital measure.
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—