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

Lord Beamish Excerpts

Monday 13th September 2021 Public Bill Committees

[The Chair]

More than half of the time allocated has already been used up. I hope that colleagues will make their questions very brief, in the hope of encouraging succinct answers.

[Mr Kevan Jones (North Durham) (Lab)]

Q Professor Kaufmann, you used the words “chilling effect” and “tip of the iceberg”. We heard this the other day from other witnesses. Getting your head around the idea of self-censorship is like having blancmange in your hands. Frankly, there is no firm evidence for it. My problem with the Bill is that it is a very un-Conservative piece of legislation. It is about involving the state directly in the running of universities. You mentioned the director for freedom of speech, and that may be fine, under the present Conservative Government, but, as I said last week—

[The Chair]

I am going to interrupt, because we are not taking evidence from you. We are trying to invite the witnesses to express their views.

[Mr Jones]

As you cannot challenge the director, if you had an authoritarian Government, that could potentially be very difficult. The other point, to Professor Goodwin, is on employment: the Bill will not stop academics being sacked. Surely there should be something in the Bill, or some change in terms of employment law, to give protection to those individuals you talked about? Finally, Professor Kaufmann, on the tort issue: does the Bill not open universities up to a huge amount of litigation? For example, the United Front—a front for the Chinese Communist party—operates widely on our campuses today; will it not use the Bill as a mechanism to ensure that it gets across its ideas and arguments, while being possibly well-funded by the Chinese Communist party and Chinese Government? Is there not a danger of giving weapons to our opponents, and doing the opposite of what we are trying to achieve?

Professor Kaufmann: There are some really good questions there; the one about the state is interesting. It can seem paradoxical that the state is needed to protect individual liberty, but actually it has happened many times in the past. Think of society as three layers, Government, institutions and individuals, instead of two, Government and individuals. The institutions can become illiberal, in which case the Government need to step in to protect the liberty of the individuals. In the United States, in the early 1960s, there were universities that segregated black and white students—essentially barring black students from entering the university, such as at the University of Mississippi. The US federal Government had to more or less step in and desegregate those universities, and they essentially violated the universities’ autonomy to do so. That is an example of where the Government were needed to protect the freedoms of students.

[Mr Jones]

Q Also McCarthyism, which was the reverse of that.

Professor Kaufmann: Sure, McCarthyism. All I am saying is: it is not unusual. If you have a corrupt police department or a school that is taken into special measures, government action is needed to protect liberties. This is clearly one of those situations.

I do not think that universities can reform themselves. The pressures on them are simply too powerful. I have seen this up close, as a head of department: in committee meetings, no one will speak up against what is an illiberal policy but will make them look like a racist or transphobe, and so the policy gets through. In the US, they have had speech codes in universities since the late 1980s. There have been complaints about them—they are a violation of the first amendment right to free speech—but they persist because the institutional forces are too strong. You need an outside force to come in to reform the system. Government action is absolutely central to this, and that is why the Bill is so important.

Professor Goodwin: To keep it brief, I think the Cambridge vote was very revealing. Publicly, you have an academic who struggles to get two dozen signatures, but the moment you ask academics to express their view in an anonymous situation under secret ballot you find that most academics are willing to speak up and challenge the consensus. That is, to me, direct evidence of the chilling effect, and the way in which once you remove the threat of being exposed people are more than willing to challenge that orthodoxy.

If the current system with regard to sacking and dismissal were working, we would not be having this conversation. We would not have had dozens of academics appearing in the newspapers. There was another one this weekend from the University of Bristol who was accused of being Islamophobic. The university had ruled that he was not Islamophobic, but had none the less removed his course in response to student satisfaction.

That is another example of how, to be frank, the broader system needs a good overhaul. We have generated a market-based system that is overwhelmingly skewed around student satisfaction rather than the pursuit of truth and intellectual exploration. If the current system were working, we would not be having this conversation. It is why, on the director of academic freedom, people who are dismissed for, they feel, political reasons need to have somebody to whom they can turn to explore their case and interrogate it.

[Fiona Bruce (Congleton) (Con)]

Q Thank you, gentlemen, for coming today. The Bill speaks of freedom of speech in relation to students as well as staff; however, academic freedom in the Bill is defined in relation only to academic staff. Should that definition also include students? I am thinking not only that academic freedom is important generally for anyone at a university, but that some students, such as doctoral students, may also be tutoring.

Professor Goodwin: My view would be that the protection of academic freedom should apply not just to established academics but, in particular in some cases, to academics who are at the beginning of their career and perhaps on fixed-term contracts, or who perhaps are doctoral students. They are the most likely to self-censor, for obvious reasons. They do not want to irritate their colleagues. They do not want to suffer reputational consequences.

My view would be that it should also apply to students, given that we have around a quarter, if we look at the King’s study, for example—I would add lots of emails from students in my 20-year career of teaching in universities—of students feeling that they cannot speak out about particular issues. I think you heard from Tom Simpson who made that point regarding his experience at Oxford, so I think that students definitely need to be included.

Professor Kaufmann: I agree with that absolutely.

--- Later in debate ---

[Mr Jones]

Q On that point, it is quite clear in the legislation who will decide: it will be the director of free speech, whose decisions are not even legally challengeable. To me, that is very clear.

I know that in the modern-day Conservative party there is a lot of political cross-dressing going on, but what I find quite frightening about the legislation is that one individual, or a future Government of any persuasion, will have a very Orwellian view of deciding what is and is not acceptable. That is a great departure from my usual understanding of what traditional Conservatives have argued for in this place over the years. Would you say that that one of the problems of this is that the final arbiter will be a political appointee?

Sunder Katwala: I think that there are risks if it is the whims of an individual. We will have to have a clear framework. Say we create an event titled “Are there any limits to free speech?”—I remember people used to create that event when I was an undergraduate student—and we say, “We’ll be joined by the Taliban, David Irving, Anjem Choudary and Zhirinovsky of Russia for that debate about whether there are any limits.”

The question then for the Government, the regulator or the vice-chancellor is to say, “Is that a jolly good way to establish the debate? There are some risks of Anjem Choudary because we know that he radicalises a lot of people towards terrorism, but he dances within the law,” and so on, or is that a kind of lawful speech? I would not have that in my charity. I would have a very robust debate, but I would not have it with Anjem Choudary and Britain First. Are we going to say to universities, “You can’t make any of those choices about the boundaries within your expansive protection of free speech”? That is the key practical question.

[Mr Jones]

Q I agree, but the danger in the legislation as it is written is about those individuals. My concern is more that foreign states that want to change the direction that we argued for on freedom of speech in this country will use this to challenge academic institutions, and will be allowed to.

I mentioned earlier the issue of the operation in our universities of the United Front of China. They will be able to take cases and argue them and no doubt they will be well financed. There is a danger that they will use it to get their own way through their very deep pockets.

Sunder Katwala: You are going to have to have a transparent policy on which cases are decided. That is where my principles are about “What can you say about gays, women or Jews?” and “What can you or can’t you say about the lurid conspiracies that don’t seem to have any value to academic freedom?” How do you deal with those tensions?

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

Q You have raised three interesting points at the margins. The entire point of the legislation is that there are things that are not in these extreme examples that are currently being challenged at universities. That is basically the evidence that we have received from the academics who have appeared before us in these evidence sessions.

In light of that, do you not think that any Government in a liberal democracy such as ours would find that those three specific issues––clashes with the Equality Act, those advocating against academic freedom and those with very extreme views that they try to cover with academic freedom––could easily be contained within that direction of free speech, thereby ensuring what we all want: the extension of free speech by the academics who tell us that they are mass self-censoring now, so that the professors who just appeared before us can be allowed their academic freedom? We are actually protecting the freedom of perfectly reasonable people, not people who are doing the things that you suggested. Do you see where I am coming from?

Sunder Katwala: In principle, I think the approach you have is very good. We have been having this debate about free speech on campus in society more broadly for several years and we never really get to the difficult issues.

What I would like is for people on both sides of the debate––there should not be sides––to look through the other end of the telescope. If you are someone who is very worried about racism and hate crime, you have got to be clear about the robust, tough stuff that you are going to allow so that you can be clear about where you draw the line.

The liberal or left side of the debate has a reputational point. The people worried about the incursion of free speech have not yet gone to these hard cases and said, “That is what we would do on this boundary, this boundary and this boundary.” If, instead of always just using their overall slogan, the two sides engaged with the value of the point on the other side, we would actually get to the hard cases.