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

Lloyd Russell-Moyle Excerpts

Tuesday 7th September 2021 Public Bill Committees

[Sir John Hayes]

I am a professor at the University of Bolton.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

Q I have to declare an interest. I am a trustee at the University of Bradford union. I have received donations from the University and College Union. I was the UCU co-ordinator at the University of Sussex and I received money from that university to provide educational opportunities for their students. I would like to think that I work in the sector.

Professor Stock, thank you for your evidence. I must say, actually, that your vice-chancellor did sing your praises to me the last time that I met him and said how excited he was for you to be coming here to show the diversity of views at his university. He was very positive, actually, and I have the email to prove it. That might reassure you. He is leaving anyway, so we will see.

You have raised some really important points about making sure that there is diversity in views at a university. Is there a problem, however, if this is put in legislation, that that becomes too strictly defined as requiring balance? We have debates about the BBC and climate change denial, and the need to have equal airtime for people who disagree and for people who agree. Is there sometimes a necessity for a university to develop a course that is balanced not just numerically but also in terms of where the academic weight is?

Professor Stock: There is a useless way to balance and then there is a productive way to balance. The BBC is a completely different context, because often you have to present both points of view simultaneously, and they just start shouting at each other and nobody’s the wiser. However, on a course that extends through time, and possibly over years, it would be unacceptable not to balance. Balance just means going through lots of different points of view that disagree with each other and trying to work out what you think. It means telling the students that it is their job to work out what they think—that they are not necessarily supposed to agree with you just because you think something, but they are supposed to develop their own points of view.

What is happening at the moment, for me personally, is that—completely extraordinarily, relative to the norms of the sector—whenever I do manage to get an invitation to speak somewhere from some poor, hapless person who does not know my reputation in advance, complaints pile in, and they say, “We’ve got to find a trans person to be on stage with you for balance.” I have had the Francis Bacon keynote at the University of Hertfordshire completely changed in format—until covid meant that it did not happen anyway—just because this idea of balance was required. That is much more like the BBC kind of balance. I do not see why I should have had someone right there when no one else is required to have someone there.

[Lloyd Russell-Moyle]

Q Will the Bill not promote that perverseness? Rather than allowing an academic to speak within their own frame, the university will feel obliged to make sure that there is someone to speaks against—in the case you mention, a trans activist—when actually that totally distorts the ability of an academic to explore ideas without having someone jump down their throat every moment.

Professor Stock: You may know the Bill more intimately than I do—I have read it a few times—but I have not seen anything specific about viewpoint diversity. [Interruption.]

[The Chair]

We can only have one person speaking at a time. Let the witness speak, please. [Interruption.] Lloyd, will you let the witness respond?

Professor Stock: I think I understand. I do not see anything in the Bill. I think that that is a danger. That is a particularly bureaucratic, shallow understanding of viewpoint diversity and balance. The guidance under the free speech tsar should absolutely avoid demanding that every strong articulation of position is immediately countered, chronologically, by its opposite. That would be facile. However, there are other ways of explaining what balance is, of conceptualising balance, that leave that out.

--- Later in debate ---

[Lloyd Russell-Moyle]

Q The devil is in the detail. You mentioned at the beginning of your evidence, in response to some of the questions, about part of the problem being that people are unsure, particularly those on short-term contracts, and that academics might not be promoted. Is the problem that you identify the very problem that UCU and many of us went on strike over only a few years ago—the gradual move towards temporary contracts in institutions, the move towards lack of tenure and requiring students to do teaching? It is not a problem of freedom of speech; it is a problem of giving people security in their workplace.

Professor Stock: That is a false opposition. It is both. Just for the record, UCU had adopted an irrational view on exactly the issues that I am engaged with. I am no longer a member of the union because it would not support me in my academic freedom, so UCU is not blameless in this area.

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

Q I draw the Committee’s attention to my entry in the Register of Members’ Financial Interests. I am an honorary fellow at Birkbeck College at the University of London.

The European convention on human rights is the main underpinning of most human rights rules in the UK, including freedom of speech. The UK, like most of the member states, goes well beyond what that says is the minimum. Given the international nature of academic research and the experiences that you have outlined, I am interested in your view on the adequacy of the minimum protections that that provides for freedom of speech and whether you foresee potential conflicts with other pieces of legislation—for example, inequalities that might result?

Dr Ahmed: With regard to tension with other legislation, I suspect there might well be tension with the Equality Act and difficult decisions to make about a breach of the duty to promote freedom of speech versus the duties imposed under the Equality Act, so I think there are issues that guidance should be able to sort out with regard to what counts. My understanding of the ECHR is that there is the strongest possible protection for academic speech, so almost nothing can count as harassment in a pedagogical context.

--- Later in debate ---

[Michelle Donelan]

Q Do you share that view, Trevor?

Trevor Phillips: Yes. I do not really see what in the text of the Bill would produce that result. I think you would have to construct a very outlandish scenario for that to happen.

[Lloyd Russell-Moyle]

Q Trevor, you mentioned the porter. That would not be covered under the Bill. Do you think the Bill therefore needs to be expanded?

Trevor Phillips: Forgive me—you say I mentioned the what?

[Lloyd Russell-Moyle]

The porter is not an academic member of staff. A porter is a non-academic member of staff, without academic privileges. My understanding is that they would not be covered under the Bill. Are you suggesting that the Bill would need to be expanded to all contractors? Most porters in most universities now are not even necessarily employed directly by the university; the services are subcontracted out. Are you saying that it should be expanded to all contractors—to everybody that the university has a relationship with?

Trevor Phillips: No. The individual was an employee, actually, in the same way as an academic.

[Lloyd Russell-Moyle]

Q Not an academic employee.

Trevor Phillips: I am not a lawyer, but I do not think in terms of employment law there is any differentiation.

[Lloyd Russell-Moyle]

Q I agree with you that it is very worrying when people are dismissed for expressing views that do not relate to their job—a porter expressing a political view one way or another should not make a difference. If it does extend to the porter, which I am not sure it does, why should they get different protections from a porter at a hospital or a supermarket? Should we not be talking about extending protections, if they are needed, to all peoples in all workplaces?

Trevor Phillips: I think I understand the premise of your question, but I do not really agree with it. The expression of an opinion, one way or another, should be protected, whatever your job. The reason that this particular individual ran into difficulty was not because he was not being asked to lecture students. He was a Labour councillor, and I think it was in that context that he uttered the views that were thought to be disobliging. The point here is that the censorship that is taking place is not just to do with what academics may be saying to their students in tutorials or lectures; the censorship here is being exercised against any individual who happens to be associated with the institution who may or may not take a view or write something in any guise.

We can take the case, for example, of Noah Carl. I do not agree with anything Noah Carl has written, by the way. However, the criticism of him was that he wrote an article in a journal that also published views that were disobliging; it was not actually about his views. The point here is that I do not think there is anything in this Bill, or indeed the harm that it is designed to remedy, that separates the questions of what might be said as part of a job and what might be said as a human being.

[Lloyd Russell-Moyle]

Q The Bill gives protection for people to express things within their field of expertise. That means academic staff, not people who profess views outside of their expertise; they could still suffer consequences according to the Bill. That is where we are.

To both of you, I am interested in who does the judging of where the limits of free speech are. You could say something controversial, something that somebody thinks is Islamophobic or antisemitic. In your view it might not be and you have the right to express that view, but surely there is a right to a backlash and for people to express their distaste for distasteful views. There is a right to offend, but there is also the right to be offended. How do you stop a chilling effect when stopping people’s right to express their distaste?

Professor Biggar: Of course people have a right to express distaste of any views they wish. My own view is that universities ought to be in the business of teaching future citizens to express their passionately held views civilly, rationally and robustly, without abuse. If universities do not train citizens to be civil in that fashion, we can expect violence on the streets way down the line, to be melodramatic. Within the law, it seems to me that universities should impose norms of civility on either side. But it is not just a matter of people expressing their distaste at gender-critical feminists or critics of Black Lives Matter or people who think the British empire was not entirely wicked. It is not just that; it is the use of political means to apply political pressure—not rational but political—and it is the use of aggressive abuse.

[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.