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

Lloyd Russell-Moyle Excerpts

Monday 13th September 2021 Public Bill Committees

[Michelle Donelan]

Q I will ask just one more question, because I know that a number of Members want to come in. Do you agree that it is important to create an atmosphere on our campuses whereby difficult issues can be openly discussed, to create the critical thinkers of tomorrow?

Sunder Katwala: Completely, yes. It is the question of whether there are any boundaries where you would be allowing reprehensible content that undermined academic freedom, liberal democracy or the role of the university, if you did not get those difficult cases right.

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

Q Thank you very much for your evidence. I should declare my interests, as I have done in previous sessions—Sussex University, the University of Bradford and the University and College Union.

Is there a problem that expanding this to student unions might have detrimental effects? Student unions traditionally allow students to self-organise ginger groups, different political groups and so forth. If you require the Conservative club to enforce academic freedom, does not that make a mockery of having a club of Conservatives in which they can talk and debate issues among themselves?

Sunder Katwala: In principle, I do not see why it should do so—unless you have organisation of it wrong. As I see it, the principle is that the Bill should protect the difficult conversations that different people want to have. In theory, it should be blocking people saying, “I don’t like you saying that about Winston Churchill or the British empire—that’s too tough,” as well as stopping other things. But the devil is in the detail.

[Lloyd Russell-Moyle]

Q Our last witness, Matthew Goodwin, said that he wants the Bill to stop people making a mockery of academics. Last week, Dr Ahmed said that he wanted the Bill to allow him and his colleagues to be able mock religion and different people’s ideas, and Trevor Phillips said that he wants the Bill to stop people calling him racist on campus. Is this a Bill in which everyone has put their desires but which does not actually fulfil any of them?

Sunder Katwala: Mocking academics is part of free speech, so I do not think the Bill will stop people mocking academics.

[Lloyd Russell-Moyle]

Q Exactly.

Finally, I want to talk about self-censorship. According to Facebook, 71% of its users self-censor. The UCU study says that only 35% of academics self-censor, and the King’s study says that, among right-wing academics, the figure is only 32%. Would that be evidence that, actually, right-wing academics are the least likely to self-censor and there is no problem?

Sunder Katwala: We are looking for cultural change whereby we have more confidence in having difficult conversations. The way to do that—I have tried doing this, and it is quite an interesting thing to do—is to say to people, “Give me a list of things that you think we can’t talk about any more. Let’s stay in the room and see whether we can have a conversation about them.” I have a concern: do we have that conversation with the right boundaries and the right culture? This is where I think people are balancers on these issues.

For example, people think there is a view about language that we do not want to use and there are labels not to use about people. Political correctness has civility and kindness, and it has a value for people, but when it is a code and you did not get the memo last week and now you are on the wrong side of it, people get a bit worried about how fast it moves.

I am not an expert on this, but, for example, people find this with debates about gender and sexuality. They know that we have changed our minds about the way we treat gay people in our society, but they find that very confusing and they do not know where to go to have that conversation and ask people about that. It is that navigation. Maybe we should be putting more emphasis into seeing how we have these sites of constructive engagement with difference, rather than having a regulatory process about who do you want to fine.

[Lloyd Russell-Moyle]

Q Finally, what you have just explained seems laudable and admirable, and what I want every university to be doing. Just so we are clear: are you saying that providing a legal tort process could actually undermine the ability to get people around to have a decent conversation, because they will be running to the courts?

Sunder Katwala: We do not know what the cultural impact of that will be, and whether that will be weaponised or used sensibly. I think the culture of the regulator in dealing with vexatious cases will be quite important. We see it in the sector of charities now and other things; we probably see it in politics, as well. If you create a regulatory thing, then people want to use up the time of people they do not like by reporting them to things. Pushing back against that, while doing the job it is trying to do, is important.

--- Later in debate ---

[Felicity Buchan (Kensington) (Con)]

Q May I ask a simple question? Do you welcome the Bill?

Nicola Dandridge: Yes. We think that there is a serious and significant issue in relation to academic freedom and free speech in higher education, and the proposals in the Bill seek to address that and create mechanisms for tackling such issues.

[Lloyd Russell-Moyle]

Q The Bill would allow a complainant to bypass the Office for Students and go straight to the courts. Is that something you welcome—that there is an ability to run rings around each process—or should they be interrelated?

Nicola Dandridge: The Bill does acknowledge that the different mechanisms might need to be interrelated, so that a student or an academic member of staff can take recourse through only one mechanism before they engage with another. That is in the Bill. I do not think it is a question of running rings around the Office for Students. It will be a question of making clear what the advantages and disadvantages are for each route, so that the student, member of staff or any third party affected can pursue the most appropriate recourse for them.

[Lloyd Russell-Moyle]

Q Currently, there is no requirement in the Bill to go through any internal or external process before you go to the courts.

Nicola Dandridge: But the Bill allows for that.

[Lloyd Russell-Moyle]

Q Is that something that you think should be more explicit in the Bill—to require someone to have sought other dispute mechanisms first, like you do with other requirements, such as before you go to court for a judicial review?

Nicola Dandridge: The Bill does acknowledge that that may be something that needs to happen. I do not know whether it needs to be on the face of the Bill, but the Bill does acknowledge that that sort of thing needs to happen, and I think it is quite important. The main thing is about making sure that there are clear and proportionate paths for claimants to follow. Of course, the advantage of the complaints system—for example, with the Office for Students—is that it would be free to the claimant, whereas going to the courts can be very expensive. Things such as that need to be made clear, so that people can make the appropriate choice.

[Lloyd Russell-Moyle]

Q Do you think it is right that the outcome and annual report made by the Office for Students would be privileged and, therefore, not open for judicial review or oversight?

Nicola Dandridge: We would normally publish our reports. It depends on the circumstances, but I cannot imagine why we would not want to publish a report of this sort.

[Lloyd Russell-Moyle]

Q But my understanding is that the report being privileged means that a complainant who might feel that it has not fairly reflected their views would not have recourse to judicial review. Do you think it right that a public body has that unusual level of privilege?

Nicola Dandridge: My understanding is that the Bill protects against defamation—that is very common with other regulators, too—but that does not mean that the decisions of the director for free speech and academic freedom cannot be judicially challenged. All our regulatory decisions—or most, as far as I am aware—can be judicially challenged, and I do not see that the decision of the director would be any different.

[Lloyd Russell-Moyle]

That is very helpful—thank you very much.

[Sir John Hayes]

Q The witness immediately before you suggested that lawful speech on campus might be mitigated, restrained or even prohibited, and said that that job would perhaps fall to the Government or vice-chancellors. What is your view on that?

Nicola Dandridge: These sorts of decisions about what is lawful and what is not are both hugely complex and very facts-specific, so I think it would be very hard for the Government to anticipate those sorts of decisions. I think it is appropriate for that to fall to someone like the director and the Office for Students, who could take all the facts into account to make the appropriate decision.