Higher Education (Freedom of Speech) Bill (Second sitting) Debate
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Matt Western
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Higher Education (Freedom of Speech) Bill (Second sitting)
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The Chair
We are now sitting in public, and the proceedings are being broadcast. We will hear oral evidence from Professor Stephen Whittle, Professor of Equalities Law at Manchester Metropolitan University, who is joining us remotely via Zoom. We have until 2.45 pm for this session.
Professor Whittle, welcome. I am Judith Cummins, and I am chairing this session. Would you please introduce yourself for the record?
Professor Whittle: My name is Stephen Whittle, Professor of Equalities Law at Manchester Metropolitan University. I have worked at Manchester Metropolitan University since 1993, and I have taken an extensive interest in transgender equality issues all my academic career.
Matt Western (Warwick and Leamington) (Lab)
Q71 Thank you very much for joining us, Professor Whittle, and for your written submission. I want to start by making a few points. Looking through your submission, I was interested in what you said about trans rights and the trans rights group Press for Change. You said:
“Trans academics have mostly tried really hard not to accuse, and certainly not to ‘no platform’ anybody. Yet these voices are making trans people look like the extremists. Sadly, it will have the effect of shutting down the debate.”
You have spoken about the challenges of living as an openly trans man. If the Bill gets passed into law, allowing anti-trans campaigners the right to speak on campus, what effect do you think that will have on anti-trans campaigners’ speech on campus?
Professor Whittle: It is important to state from the beginning that I am totally for people having the opportunity to speak and voice their opinions on campus— particularly academics, as long as they base their presentations on their research, work, experience and knowledge. I have absolutely no hesitation about acknowledging that right. My main concern about the legislation is not so much the lack of ability for people who do not believe in trans rights in the same way that I do to have the opportunity to speak. On the whole, people who present a valued and evaluated opinion have had many opportunities to speak on campuses, as well as in the media. The problem is that the way it is presented at the moment is that protesters, or people who disagree with their point of view, are putting what is often termed a chilling effect on academics and their freedom of speech.
I have been speaking about trans rights for a very long time—nearly 30 years—and, as an activist for nearly 50 years, I have spoken in many different forums, run many events and had many challenges to that right to speak and to express those opinions, not just in the UK but worldwide. I have run conferences that have been threatened by Christian activists and so on and so forth.
I have even been in my own lecture theatre and had students stand up and heckle me and accuse me of being the worst parent on earth who ought to have my children removed from me etc. To respond by saying that those people do not have a right to say that is not the correct way forward. We have to have the conversations. I absolutely believe in having the conversations. Being persistent and willing to have the conversations over the years has ultimately led to many legal changes that have been positive for the trans community.
What has happened has been a hypersensitivity. Politicians, academics and external speakers have always faced hecklers, barracking and external protesters. I think about Leon Brittan coming to Manchester University. He would never have spoken at a university ever again if he had felt that that was the only experience of academia. Those protests were a long time ago. He carried on speaking, and that is exactly what we do. I always take the view that you engage. If there have been serious threats to a conference or event that I have been organising, I have made it ticket only. I find that charging £5 to £10 focuses people’s minds on whether they really want to spend the money to get in and barrack at something.
I have organised protests outside events myself but that has never been to close down the conversation. It has been to express an alternative point of view—to say, “Here are many voices who disagree with the voice inside.” The very first time I ever took part in action was probably 1974 at Bradford University, invading a British Medical Association conference, where a doctor was going to speak who definitely thought trans people should not have treatment. He chose to leave the platform. What we asked for was to have a speaker who presented an alternative point of view.
My main concern about the Bill is that it will provide an additional chilling effect overall, not to speakers but to potential protesters. It will result in people who want to express an alternative viewpoint, who are not speakers and do not have that opportunity to participate in the event, to have a voice on the platform, having no way of expressing that without appearing to challenge somebody’s right to free speech. As I say, I absolutely believe in freedom of speech, in expressing opinions and having conversations, but the conversation has to be inclusive of everybody. If we exclude any one group by making them a potential wrongdoer, we are going to close down those conversations.
Matt Western
Q If I understand correctly, you are saying that it is possible within the institutions of universities to resolve this; that we need open debate; that this should be allowed; that academics welcome this. Perhaps the actions of certain activists are making things difficult and that should be dealt with through separate legislation. Do I understand that you believe the Bill is not necessary?
Professor Whittle: Absolutely. I have never ever felt so unsafe that I was not able to speak. I have never felt that I could not run an event because it was so unsafe. I have never felt that my speakers are threatened. I recognise student protest for what it is—student protest. It is a right to express a viewpoint, and I have often provided capacity for that protest to take place so that we are not shutting it down but listening.
Matt Western
Q Moving on, I understand you faced many challenges over a long period of time, as you just articulated. How do you define academic freedom, and how do you perceive the relationship between academic freedom and freedom of speech?
Professor Whittle: Academic freedom is always problematic, because we are always in a situation where some opinions are considered so off the wall and out of the water that we really do not feel that this thing should be voiced within academia. We can think of far right movements and extreme left movements. They connect extremist Christian views and extremist Islamic views, and we have to sit and make a reasonable judgment about what is acceptable. Is it acceptable to have somebody who espouses views that I might consider extremely fascist or Nazi views within a university setting? I would say probably not, but we have to have the conversation and assess what that speaker is saying. If, for example, somebody who clearly denies the holocaust wishes to speak at a university, I would think that was not acceptable. There are certain historical facts that are sacrosanct and you cannot say that they do not exist, unless you have extremely good evidence to the alternative. It is always a balance—looking at what we consider as a society to be acceptable speech within the notion of freedom of speech and academic freedom.
Within academic freedom, I have a curriculum that I teach and that I speak to, but I have a certain freedom within that to reflect the research of myself and my peers through the classes that I give. However, if I sat in a classroom and was talking about black civil rights movements of the 1950s and then started giving parts of the speeches of anti-civil rights campaigners at that time, I would have to think very carefully about how I did that. For example, I remember reading from a speech by Enoch Powell many years ago and a student complained. Basically she had not been awake properly and listened to the fact that I said, “These are not views I agree with. These are the views of a politician at the time, and these were the views that were publicised in the paper and these were the views that caused X consequence.” Fortunately, somebody had tape-recorded the lecture and it was all there. I have to be able to decide when and when not to say those things.
I have never felt that I have to be so careful of student views. There are some issues, for example—sexual assault, rape, female genital mutilation—where I thought very, very carefully about what I would show, what I would say and what I would present, but I have always taught those subject areas because that is part of my academic freedom, and no amount of students saying, “I feel offended by that” or “I am upset by that” will stop that being taught. I have had colleagues say, “Do you think that is the right thing to teach?” and I have had to defend it and say, “Absolutely. My job is to educate the whole student body in this area of law and this is what I will do, but I will not be doing this and I will not be doing that. I will be doing the other.” So it is about judgment and what we feel. One of the sad things that I have really found upsetting about this debate is the number of academics who have felt personally unsafe where I think they probably do not need to, because what they have to say—if they have the evidence and they have done the work—will be listened to. It may not be agreed with—there may be students outside shouting at the door, disagreeing with them—but that is part of the process of academia.
Matt Western
Q To make one final point in terms of what you were just describing: we heard from a couple of academics this morning, I do not know if you listened in—
Professor Whittle: I have been in hospital for the last couple of days so I have been a bit out of it.
Matt Western
Well, thank you for joining us in those circumstances. Professor Stock from Sussex University said she felt that perhaps the university did not promote her enough in terms of her freedom of speech. Do you feel like you do get promoted by Manchester Metropolitan University? The second point she made was that there could be some improvements to current processes on campus; can you suggest any that would obviate the need for this Bill?
Professor Whittle: I have never personally felt that Manchester Metropolitan has not supported me in what I have done, what I have organised or the events that we have had, some of which have been potentially quite contentious. For example, we have had gender critical feminists and trans activists speaking at the same event. The university has always been supportive.
I do not think that universities do enough to promote what we do, to either our student body or to the external world. I often think it is a great shame that we do not get the message out about what our academics are talking about to a wider group than just my department, for example. There must be a better way than sending out a bland email to everybody saying X event is taking place—which most people will then delete. It is thinking about how we want to promote the events that take place; about how we could do that through calendars, through doing more public events, where we invite the public in to listen to what we do and the conversations that we have. That is really important because, the fact is that we have very serious discussions. We often have multidisciplinary and interdisciplinary groups having extremely important conversations about the way we consider the world that we want and how we might live in it. However, in order to do that we have to have the support of the university, in the sense that it believes that we are public-facing and student-facing—we are not little isolated islands within little isolated faculties. There is not a sense, for example, even within the university budget that there is money to promote anything. You have always got to dip into your own budgets. Things like that—the idea that universities really think about looking outwards—would be a really positive change.
Sir John Hayes (South Holland and The Deepings) (Con)
Q I am interested to hear your view that, essentially, this is a Bill that is not addressing a problem, because the evidence we have received, both in writing and verbally earlier today, suggests the opposite; academics were saying that it is indeed a problem. They claimed that criticism of the Bill by saying what you have said today is, and I quote, “not true.” There is empirical evidence that the freedom to speak and research of a significant minority of university students and teachers is being inhibited. Specifically, in the summer of 2017, at Bath Spa university, research into transgender detransitioning was prohibited on the grounds that it was politically incorrect. There is in other universities, and in the minds of other academics, a problem. How do you explain that?
Professor Whittle: At that time there was clearly a media scare about the power of transgender activists and about the rights of transgender people. I read the research proposal of that particular piece and I looked at why it was not approved. I do not think that I would have approved it for my university, because it was not sufficiently sound. It was not sufficiently based on preliminary research. I think it had a political motivation, which I would not expect from any of my students; I would expect a certain level of objectivity from them.
I looked at that quite closely, thinking, “Have Bath made a big mistake here?” but I think what happened was that their decision to refuse to go ahead with that research at that time became a media story that they had refused because the transgender world would attack them for accepting it. Good research has been done on the question of young people and whether they would continue to transition or would detransition—a lot, in fact—and I have never known anyone else have their research stopped, but that was not sound. When you read it, it did not feel as if it was a good piece of research. Maybe had Bath addressed it properly, they could have done more to say, “This needs sorting and this does before we will consider it.”
Smita Jamdar: Hello. My name is Smita Jamdar and I am a partner and head of education at Shakespeare Martineau. I am here in my capacity as an adviser to a number of universities, over many years.
Matt Western
Under the Register of Members’ Financial Interests, I declare that my wife works at a university. I am not sure if it is necessary to declare that, but I want to put it on the record for this session.
Mr Kevan Jones (North Durham) (Lab)
Chair, this morning it was said that hon. Members have to declare their interests every time they speak. My understanding, and that of the right hon. Member for South Holland and The Deepings (Sir John Hayes), was that as long as the interest is declared at the beginning of the session that should be enough. Have the rules changed or are the right hon. Member and I just being old fuddy-duddies?
Matt Western
Q Thank you for joining us today, Ms Jamdar. One of the areas I want to explore with you is around the tort. There seem to be widespread concerns about what this will mean and the implications it will have for universities and student unions. In an article published in Times Higher Education in May 2021, you wrote that the
“introduction of the statutory tort will almost certainly involve universities in more legal action”.
Could you briefly expand on the consequences, both intended and unintended?
Smita Jamdar: As I understand it, the tort is designed to enable people who feel that their right to freedom of speech, as defined in the legislation, has been infringed to go to court and argue their cases. The reason why I fear that could have a number of consequences, not all of them intended, is that in order to issue a case before court you simply have to pay an issue fee, in most cases, write the particulars of claim and set it out, so you set out your case. It then locks both parties into a set of proceedings. Ultimately, you can cut those proceedings short, so you can apply to the court to have a case struck out, but that nevertheless involves a certain amount of time, expense and resource in dealing with the litigation.
In relation to the statutory tort, there is not any threshold level of harm that anyone has to show. Ultimately, for a remedy, any tort requires some form of damages, but that would not necessarily stop people from bringing claims simply to make the point. Especially where the threshold of harm is very small, it could be brought in the small claims court, where no costs are recoverable by either party. On one analysis, you would say that is at least a level playing field, but again it could mean that a few thousand pounds in every case could be spent getting rid of claims that are either very trivial or unmeritorious generally. That is the concern.
Mr Kevan Jones
Q You cover the issues of frivolous and vexatious, and even they will cost some money, but if you get individuals who are well financed this could lead to a lot of expense for the universities.
This morning, my right hon. Friend the Member for Hayes and Harlington (John McDonnell) raised the issue of Chinese students. We all—or I do and at least one other person in Committee does—know about the United Front activities of the Communist party on campuses throughout the UK. Sometimes they are intimidating students, and they are pushing an agenda—for example, on the Uyghurs in China—that is pro the Chinese regime. Under the Bill, I fear that that could be opened up, as my right hon. Friend raised this morning.
A group of students could on the face of it just be students, but they might have financing behind them that we and other people do not know about so that they could pursue a freedom of speech claim to push an agenda that might, for example, be in the interests of the Chinese Government. That would not only involve a lot of cost, but would clearly be financed by some very deep pockets, so it could lead not only to that agenda being pushed but to a lot of expense for the universities. Do you agree with that?
Smita Jamdar: The legislation obviously covers freedom of speech within the law, so as long as what these people were purporting to want to speak about was within the law—or at least arguably within the law, because obviously one of the things that you might wish to have the court adjudicate on is whether the speech was within the law—I cannot see anything that would stop that kind of funded litigation. Ultimately, you can try to seek clarification about where money has come from to fund litigation, but there are always ways of passing money through so that it comes from the pockets of the claimants in the first instance. So, yes, we would not necessarily know who was funding the litigation, or to what end. Ultimately, the question for the court to decide would be: was it an infringement of freedom of speech within the law?
Matt Western
Q To pursue this a little further, you and others have been talking about getting into a compensation culture—we might have the equivalent of ambulance chasers going around chasing, whether through social media or on campus. You are obviously very familiar with the legislation and I think you are the first lawyer we have had so far as a witness. Is it clear to you how this would work with the tort and how, when a complainant wishes to pursue some damages, that will work through the complex relationships between the three bodies involved? We will have the Office for Students, the Office of the Independent Adjudicator for Higher Education and the Charity Commission. That looks like a minefield and super-complex—a lawyer’s goldmine. What do you think?
Smita Jamdar: There is definitely a lot of complexity here about the different roles that these bodies will play and the different routes that somebody could go through to get compensation. The Charity Commission, for example, would not normally be involved in making decisions about compensation for individual complainants; it would be looking more at whether the body in question had complied with the charity law obligations. But the other three, under the model that we have seen in the Bill, could all be involved.
Without a great deal of clarity about the relative responsibilities or indeed the pecking order—there is a rule that you cannot go to the OIA, and I think under the Bill you could not use the OfS free speech complaints process without first exhausting the internal processes of the university to challenge the decision that you are unhappy about. However, there is no such restriction when you go to court. You are free to go to court when you feel that your rights have been infringed, rather than having to go through another internal process. That said, the courts tend to encourage people to utilise internal processes first, because it is a good way of managing court resources. Does that answer the question?
Emma Hardy
Q On that direct point—thank you for letting me come in—the Secretary of State said on Second Reading that this “legal route”, the “new statutory tort”, is “an important backstop”—
“we do not want all cases going to court where they could otherwise be resolved by other means.”—[Official Report, 12 July 2021; Vol. 699, c. 50.]
However, as you have just outlined, there is no requirement in the Bill to go through the internal processes before going to the freedom of speech tsar—or whatever title they are given. Is that of concern to you?
Smita Jamdar: I think there is a restriction on going to the freedom of speech tsar; I think they are proposing that you have to go through the internal complaints procedure before you go through the OfS’s complaint process. However, I do not think there is any such restriction on going to court.
Michelle Donelan
Q But it would not be the route available for academics and visiting speakers.
One last question. I was interested to know your views on the new duty to promote the importance of free speech and whether you feel that would shift culture on campus.
Smita Jamdar: That is probably the best part of the Bill as far as I am concerned. Ultimately, the way we will address the concerns around freedom of speech is very unlikely to be through litigation or regulatory intervention because it is a cultural point. Many universities that we have worked with are already keen to promote freedom of speech. If they have a statutory duty to do so, I am sure it will help to some extent. For me, the central question will be the definitional problem of what is the mischief that we are trying to address because it is very wide-ranging.
A duty to promote free speech would not necessarily in my view get over things like people feeling nervous about expressing views that they think are unpopular, because you are not necessarily worried there about somebody taking formal action against you; you are worried about how your peers might react to you. In reality, we cannot legislate out the fact that people will naturally react to views. It is part of how we all communicate with each other.
I think the duty is a good thing. It is the best part of the Bill as far as I am concerned because it is the one most likely to achieve what everybody wants to achieve. But we do have that definitional problem—some of this stuff is just human nature, and I am not sure that you can legislate or promote that out of existence.
Matt Western
Q To come back to my opening question about unintended consequences, what we have heard a lot from various people and prior to these sessions is about the uncertainty and the real fear out there that employment contracts may get shortened and the insecurity of tenure in employment at universities will become greater. In your professional view, Ms Jamdar, is there any risk that the tort could be used to circumvent employment law?
Smita Jamdar: I am not sure I follow in what way the statutory tort would circumvent employment law remedies. What I can see is that if you present any institution that has a duty to safeguard its resources, to manage them effectively, to deliver them in most cases for a charitable objective—education and research—with a risk that they could be sued at any time, they are going to look for ways of minimising that risk before it happens. It is too late once you are already in court. There are all sorts of challenges to getting yourself out of court very quickly.
The concern would be that governing bodies, who are rightly there to try to make sure that the assets are used for the proper purpose and not diverted to unnecessary litigation, take steps to introduce preventative measures. I hesitate to use this phrase because I know it has been used a lot already in this discussion, but it creates another sort of chilling effect, which is risk aversion on the part of institutions, who say, “Actually, I need to manage this risk and therefore I am going to take whatever steps I need upfront to reduce the likelihood of someone challenging me.”
I am talking on behalf of universities because they are my client base, but if you looked at student unions and particularly the fact that they may not have as many resources to start with, they too may start to feel that they need to find ways of reducing the opportunity for problems to arise, rather than doing what I think we would all prefer them to do—create an environment where lots of conversations are happening and lots of debate and discussion is taking place.
John McDonnell (Hayes and Harlington) (Lab)
Q I want to seek your advice about another piece of the Bill: subsection 12 of clause 7 about the review that will take place. It states:
“This paragraph applies if the Secretary of State requests the OfS to—
(a) conduct a review of the scheme or its operation (or any aspect of either of those matters), and
(b) report the results of the review to the Secretary of State.”
We are not sure about what the contents of that review will be and we have not seen any guidance on that yet, but I would expect it to start looking at cases—potentially individual cases. We could get into a situation where individuals are named as a part of that review, because we are talking about the operation of the scheme.
Clause 7(13) states:
“For the purposes of the law of defamation, absolute privilege attaches to the publication of—
(a) any decision…and
(b) any report”.
I raise this point about this particular legislation because, although I can understand why privilege is awarded to Ministers, Secretaries of State and others in certain instances, we could be in a situation where individuals could be named, and in a way that could affect their whole careers and lives, without having any ability to take action with regard to anything defamatory that is said about them. It seems to narrow down the ability to secure redress and, for me, that cannot be right in any piece of legislation, particularly when we are talking about individual rights. What is your view on that?
Smita Jamdar: That raises a problem that permeates the Bill. We are often talking about essentially legal judgments, because we have to judge whether speech is within the law or outside the law. You can see a situation where somebody wants to say something that somebody else regards as defamatory, and therefore says, “You can’t say this about me.” It goes off to the Office for Students, who, on some basis—I have to say it is not clear to me—is supposed to form a view on whether or not the statement was or was not defamatory, and then it will publish a report on that.
The OfS is protected under this legislation, because it has that absolute privilege, and the Ministers are protected, but in some ways what you will have done is taken the original defamatory statement and published it more widely, as far as the individual is concerned.
To my mind, if you want to resolve these matters through a legal lens, you should go to court and court will decide. I am not sure how the OfS would have the expertise to do it and therefore there is a risk that what it then publishes does not necessarily protect the rights of the individuals who are either named or identifiable through the reporting.
The Chair
Q We will now hear from Tom Simpson, who is an associate fellow at Policy Exchange. We have until 4.15 pm for this session. Mr Simpson, welcome. Could you please introduce yourself?
Thomas Simpson: Thank you very much for having me at the Committee. It is a real pleasure to be here this afternoon. I am Tom Simpson, and I am associate professor of philosophy and public policy at the Blavatnik School of Government, University of Oxford, and a senior research fellow at Wadham College, Oxford. I was one of the co-authors of two Policy Exchange papers on this topic recently.
Matt Western
Q Thank you, Mr Simpson, for joining us today. I understand that you are also a veteran of Iraq and Afghanistan. Thank you for your service. I just want to pick up on a few points. I want to start with a general question about how you envisage the provisions of this Bill changing the culture of freedom of speech on our campuses.
Thomas Simpson: My disciplinary contribution here is as a philosopher—that is my academic discipline—and from working in the context of a school of government and public policy. I have spent quite a lot of time trying to think through what conceptual issues are at stake and what institutional means might try to address them.
Many of the reasons that media controversy around this issue arises is that there are these high-profile instances of dismissal or no-platforming. The really deep question is to what degree are they representative of a wider, underlying chilling effect across the sector. In my view, the real significance of this Bill is the long-term impact it will have over 10 years. One way to think about the Bill for those who are cautious about it is that it is really a form of anti-discrimination legislation. In the same way as the Equality Act 2010 has had, over a 10-year period, a really fundamental foundational shift in our public culture in the UK, my vision for this Bill is that, over a 10-year period, it will have a foundational, fundamental shift in culture within the university sector.
One of the complicated questions is really a sociological question. What seems at stake is that these high-profile controversies create a sociological order where a certain viewpoint is considered toxic, or is off the table or not up for discussion, which sends out a chilling message across the sector that you should not engage in that. The legal remedies that plug the gaps of previous legislation will start to stop that happening so that people will start to claim their free speech rights because they know that they are no longer subject to the risks they were previously subject to. As people claim their free speech rights, and as the courts uphold that, that should spread an opening effect across the sector.
Matt Western
Q We have heard from various contributors, and there are obviously differing points of view, but it strikes me that in any organisation you have different points of view. I presume that you are able and confident enough to speak out. Why do you think others are not? As we heard from Stephen Whittle, you should just make your points loud and clear.
Thomas Simpson: I decided not to speak out. The first issue I spoke out on was Brexit in 2016. This was a really catalytic issue for me. I was a year away from what is called reappointment to retirement age at that stage. Once I went through that process, which I did successfully, it becomes very difficult to sack me within the University of Oxford’s governing statutes, but I would not have spoken on academic freedom as an issue before I went through the reappointment to retirement age process because the public discourse around academic freedom as an issue is sufficiently controversial, even within academia, to mean that I risked jeopardising these formal processes of appointment. That was a personal judgment that I made. Now, the question is: is that a rational judgment?
In the summer of 2019, as I was beginning to think more formally about this, a research paper came out looking at an international sample of philosophers. It asked people to identify their ideological affiliation. What you get in that is that approximately 75% of philosophers identified as left leaning, about 11% as moderate centrists and about 14% as conservative. It then asked people, “To what extent are you willing to discriminate in job appointments, refereeing of journal articles and grant applications, against people of a different ideological persuasion?”
Matt Western
Q This was an international study?
Thomas Simpson: It was a study of academics based internationally, so it bears on, but not directly, the UK situation. The finding there is that the willingness to discriminate is bipartisan, so people identifying as both left and right are willing to discriminate against those on the opposite side. In this particular study, it was 55% left against right and 45% right against left.
The consequence of that is that my expectation that, were I to express publicly that, as it happened, I voted leave in 2016 with half the country—half the country went the other way; there were reasonable people on both sides—the likelihood is, given that there is a right-left orientation to that now, that were I to sit on an appointments panel, approximately half of those who identified as on the left, the majority, would be willing to discriminate against me for that position. That is beginning to give evidence that there are rational grounds for that concern.
Matt Western
Q You mentioned the figure of 75% being left leaning and you said that it was an international study. I think that in the report you talk about 75% of UK academics being left leaning, so it sounds like the UK is very much in correlation with the international picture, from what you have just said.
Thomas Simpson: Our study really bore out figures that were consistent with the international picture.
Matt Western
Q All organisations have different mixes. I would be very interested to know what the poll would be for officers within the UK armed forces—the political balance between them. Is it not just the case that that is the way it is? Academics who work in UK universities—you were also talking about the international picture—come into this work because they have an interest in those subject areas and they want to explore them. That is just the nature of it. I do not believe that heads of department hire people—perhaps you have a different point of view—or heads of department have a different point of view about whom they hire, based on their political allegiance or what their leaning may be. It is perhaps more about an interest in the topics that they have and what that will bring to the university. I think that in this report you talk about balance. This has been discussed during today’s sessions: how is it that you imagine balance gets achieved on our campuses through this piece of legislation?
Thomas Simpson: What I agree with absolutely is that most institutions will have some kind of prevailing culture—it may have a political orientation or it may emerge in different respects, so on non-political issues. What is at stake then is whether those who have the majority viewpoint see themselves as entitled to take action against those who have the minority viewpoint, or differ from the culture in some important respect. And that tipping point is what I began to get the sense had changed. Clearly, the public sphere has been under real pressure—in turmoil—over the last five years, but there has been an emergence of a kind of animus associated with political viewpoint, which has made it very difficult to engage on these topics.
Part of the complexity of academic life is that so many of the really substantial decisions—for instance, on research grants, publications and appointments—take place in the privacy of your office. So you are reading documents; you just make a judgment. You are making a judgment of quality; that should be the primary consideration. But your judgment of quality is very difficult to disentangle, as we move into a more polarised environment, from a judgment of, “Is this the kind of person that I would like to have around? Is this the kind of person who is on my side?” And the moment we shift into that thinking, that is absolutely lethal for academia.
My view is that the great proportion of academics are committed to academic freedom, do their work with real integrity and do not fall into these traps. We saw that with the Cambridge University vote. But a relatively small proportion can then exert a chilling effect across a wider set of issues, which then make you, the individual, very reluctant to speak out publicly on that.
Matt Western
Q But I sense that you are quite hung up about the figure that 75% of staff or academics in our universities are left-leaning and that somehow this is really a distortion, when clearly it is not, as you said, across the international academic landscape. I mentioned the alternative example of officers within our military. It is just that people of a certain persuasion gravitate to that line of work because that is what motivates and interests them. Surely that is simply the case at our universities.
Thomas Simpson: The question is whether those who do not conform to the majority viewpoint feel a freedom and a permission to speak publicly, and whether they are welcomed in doing that, and my experience has been that that cannot be freely assumed in all the situations that it should be.
Just moving on to the work of the Bill, one of the lines that felt like it was becoming taking for granted in the last session, and that I might want to push back on, was the idea that the OfS would have the last word and that this director of academic freedom would be, in some sense, judge and jury. What the Bill really sets out is a series of persuasive measures by which that director can influence the culture within the sector. Indeed, any particular judgments that they make are not judgments on a particular individual case; they are recommendations, which both parties are free to ignore.
I think that is a very powerful scheme, because what it sets out is that it is a persuasive recommendation; whether or not a particular university would feel subject to it would depend on how well argued it is. The university will be free to take its own legal advice and say, “We think this is not persuasive and would not hold up in a court of law. We will therefore ignore the recommendation.” That would then set off a series of events, where the other party felt like the recommendation had not been enacted. It would be up to them to make the decision: “Am I sufficiently confident about the OfS’s recommendation and my view on this case that I want to take it to court?” So it would remain the case that the courts would be able to adjudicate on recommendations by the OfS.
Lloyd Russell-Moyle
Q Can I come in on this effect whereby you are saying that right-leaning academics are more likely to feel that they need to self-censor, which is kind of what you are suggesting, in an institution? Your report says of academics that are
“‘fairly right’ or ‘right’, 32%... have refrained from airing views”
in front of colleagues. However, the report of general academics showed that 35% had refrained from sharing their views in front of colleagues. Now, that may be too high on all sides, but actually it shows that more left-wing academics than right-wing academics feel that they cannot share their views in front of colleagues. Surely this is not a right or left thing. I just wanted to move it away from this right or left thing. This is about making sure that colleagues feel safe to talk in the workplace, and surely a workplace-based or employment-based law would be better than a law that seems to address some other kind of issues.
Thomas Simpson: I am very grateful for that intervention. I should really be clear again that I start off by saying I am a philosopher. My co-author, Eric Kaufmann, who I believe may be coming tomorrow, is far better placed to answer these questions. So questions of how the study relates to others are absolutely for him.
I think one of the real tragedies of the current situation is that this is seen in the general media discussion of academic freedom as a right-left thing. The history of the issue is a very different situation. So this has been a concern for the political left at very important points—the 1950s in America, most obviously, and the early 1900s in America—
Gareth Bacon
You have had your say, thank you very much.
Thomas Simpson: I am very cautious about the language I would use to describe that situation, but I want the rule of law rather than the rule of politics. That is the frank truth.
Matt Western
Q You cited the examples of the two academics at Cambridge to illustrate your position. Surely those particular cases needed to be dealt with by changes to employment law—and that is the issue with this Bill. The Opposition understand that there are certain things that need to be updated in employment law, the online harms Bill legislation and maybe in equalities, but this seems to be the wrong way of going about it. In the two cases you quoted, surely employment law would have sorted that?
Thomas Simpson: As I said earlier in the evidence, I would seriously support considering introducing the employment tribunal as the first court to consider cases of dismissal in that situation, in addition to the existing measures in here.
The Chair
There are no further questions from Members, so I thank Mr Simpson for his evidence, and we will move on to the next panel.
Examination of Witness
Dr Bryn Harris gave evidence.
The Chair
We will now hear oral evidence from Bryn Harris, who is the chief legal counsel at the Free Speech Union. May I ask you to move forward, Mr Harris? I remind Members that we have very limited time for these sessions, and we have until 5 o’clock for this one. Welcome, Mr Harris; please introduce yourself for the record.
Dr Harris: Thank you very much. I am Bryn Harris, and I am chief legal counsel at the Free Speech Union.
Matt Western
Q Thank you for joining us today. I am not very familiar with the Free Speech Union—can you just explain to us where the FSU receives its funding?
Dr Harris: From our members and from donors. We are a member-based organisation, and people pay a subscription to be members of the FSU. That accounts for a large part of our funding.
Matt Western
Q Would you mind giving some examples of the range of membership you might have—being transparent about it?
Dr Harris: The prices, do you mean?
Matt Western
Q Not the prices—the bodies, the members. Who are they? At the moment, perhaps I am the only person here who does not know much about the FSU, but we are about to take experienced witness evidence from you, so I am trying to understand more about who is behind you and what the purpose of the FSU is.
Dr Harris: In terms of the range of members, certainly we have a good number of students, and we have had a good number of higher education cases. The last time we did the figures, it was about 30%. There is then a large number of employment cases—when I say cases, I mean when someone comes to us with a dispute relating to freedom of speech—I think another 30%, although I can check the figures later if you would like. They obviously vary very much in their background and the disputes they bring to us.
One thing I would say is that the people who come to us in trouble are very often not at all privileged. They are people who are in trouble with an employer or a university that, we believe, is abusing its power and essentially punishing that employee or student for saying something that it finds distasteful.
Matt Western
Q So you are funded from fees from those who can afford it, and from donations? Would that be right?
Dr Harris: That is correct, yes. We also have a discount fee for students and those on benefits.
Matt Western
Q I will bear that in mind.
Dr Harris: You already have free speech—you are an MP. You are protected.
Matt Western
Q Let me move on. You have described the statutory tort, which we discussed at great length earlier, as a real game changer. Is it not merely a game changer for vexatious complaints that might just happen to come your way, from the likes of vexatious litigants, climate change or genocide deniers, who can shelter behind this very wide tort?
Dr Harris: There are quite a few things there to pick up on. First, contrary to what you might believe, our ambition for this Bill is not to be racing to court every so often bringing cases. We want to see that universities are urged to comply with it and that they respond to avoid the new liabilities that it creates by protecting freedom of speech. I know the issue of vexatious litigants was an issue that concerned a lot of Members on Second Reading, but I see little chance that this will be particularly attractive for the vexatious litigant. There are a number of reasons for that. First, the new OfS complaints scheme has the power to filter out vexatious litigants. We do not know yet, but it is likely that anyone who wants subsequently to bring a claim in the courts will be required to go through the OfS first, as a form of alternative dispute resolution. That is one way in which I think we are likely to see the weeding out of vexatious litigants.
The other point to note is that any right potentially attracts vexatious litigants, including fundamental human rights such as freedom of speech. We have to be careful about backsliding on protecting fundamental rights on the basis that there is a potential risk of vexatious claims.
The other point I would make, which is very important, is that I think a lot of criticism of the Bill seems to portray the courts as supine—as passive. It completely misrepresents the fact that the courts have considerable case management powers—that they can strike out vexatious claims and that a claim with no real prospect of success can be disposed of at summary judgment. That is not to mention the practical difficulties of bringing a meritless claim. You are going to be open to adverse costs, because you are wasting the court’s time. All of those protections are in place and restrain the vexatious litigant, so there is no real reason to identify this particular new statutory duty and correlative right as enticing the vexatious.
Matt Western
Q I understand that you have commented elsewhere that you believe that the normative power of changes to the law can shift social values. Do you not recognise that the Bill could have the inverse effect and shift social values towards being less willing to hear a diversity of views, for fear of being sued?
Dr Harris: I am not sure I said that, but it is still a good question. It is hard to see in that situation where the danger of being sued arises. My understanding is that this is likely to make it much easier to secure diversity of opinion in the higher education section, because it will be difficult to punish students who say things that are distasteful to some and it will be difficult to rescind invitations to speaking events, and there will also be this enhanced freedom—the academic freedom—for members of staff. That creates a framework, but no more than a framework. I am trying to answer your question; if I have not, I am sure you will tell me.
Nothing in the Bill will make people value freedom of speech. The law cannot make anyone ethically say that freedom of speech is a good idea. It will not, of itself, create a culture of free speech, which is what we really need, and it will not, of itself, make academics start disagreeing with one another, but it will create the conditions by which that can happen. It will allow those who seek to restrain such diversity—those who believe there should be a degree of uniformity—to now be restrained. It creates the conditions by which those changes can happen, but I very much believe that it is for the autonomous institutions themselves to change those cultures. All the law can do is set the ball rolling and create the framework.
Mr Jones
Q Why do we need legislation to do that for those institutions? Most university charters have such points in them. The 1987 Act has it in there as well. Why do you need legislation to do that? Surely it is about upgrading the guidance and so on.
Dr Harris: You are right that—at least following the 1988 Act—many universities have in their statutes clauses protecting academic freedom, and that tends to be in the same wording. In terms of why we need law, again, I think we come back to the question of whether we regard and respect freedom of speech as a fundamental right. I think most people here—and, I hope, most lawmakers in a liberal democracy—would agree that it is a fundamental right and that it is fundamental to the flourishing of the individual and the running of civil society. Universities certainly pay lip service—if I can say that—and when challenged, they will always say, “Freedom of speech is our lifeblood.”
Mr Jones
Q But its definition could be determined by who the Government appoint as director or by the advice that they are given at the time, so that is a highly political situation. It might be comfortable for the present Government who are in control at the moment, but if you had a Government at the other extreme who want to take a very different view, by being able to appoint an individual or make an intervention like that, they could define freedom of speech in a completely different way that you and I would completely disagree with.
Dr Harris: To a degree, I agree, but the director must enforce free speech within the law, and the director will have no power to say what the law is. If the director misdirects him or herself as to what the law says on free speech, it can be challenged in the courts—it would be an error of law.
On the question, I think that, ultimately, what will happen is that there will be definition and enforcement by the courts of those duties and rights created by the Bill. It is correct to say that there is a role for an administrative body, the OfS. That is a trade-off that it is often necessary to make. It is worth while to have a cheap, informal and quick form of adjudication. The idea that every dispute—especially for students—should be taken to court, is simply impractical. Even though there can be drawbacks with administrative adjudication, it is essentially a stopgap so not everything has to go to the courts. Ultimately, the free speech that we are talking about here is defined and enforced by the courts. It is free speech within the law. We should all be happy with the idea that free speech is a right enforced by the courts.
Matt Western
Q You say that this is a real game changer, this piece of legislation. According to the OfS, we have had fewer than five events cancelled in universities in the two years between 2018 and 2020. In your submission, something like less than one incident a month for the last five years has come to you. There is quite a mixture of cases and incidents that have been brought to your attention, including several WhatsApp messages from students on campus and so on. Are you not guilty of a bit of hyperbole to say that this is a real game changer? The universities need to work with the OfS to tighten up processes, adopt best practice and change individual legislation, as we discussed earlier today, as opposed to adopting the Bill.
Dr Harris: Every MP must decide for themselves how happy they are to turn a blind eye to infringement of a fundamental right and how happy you are to pay that political price.
Matt Western
indicated dissent.
Dr Harris: I see you shake your head, but I think that is an important question. At what point do we say we see here abuse of bureaucratic procedure, essentially to enforce a monoculture? We see abuse of disciplinary processes, and those who are affected are predominantly, as we see, our young and very often people who are in their first year at university—very young people—who do not know what to do. They feel bullied. We are talking about, in some cases, particularly with many gender critical female academics, lives and mental health ruined. We need to have a sense of what is our quantum here. How much of this are we prepared to tolerate before we decide that something needs to be done in order to change it?
The reason I think the Bill is necessary is that the mere existence of the legislation as it is on the statute book—there can be no doubt that it is there on the statute book, and you will find the Education (No. 2) Act 1986—is not enough. It needs to have practicable, reliable means of enforcement. That is why, in too many of these instances of people’s lives being ruined and of people being bullied, it has happened too much because it is too difficult for there to be a realistic threat of enforcement. That is because judicial review, which is the means of bringing a claim under section 43, is very expensive. You really have to lawyer up and it is not practical.
The Chair
In the interest of trying to get every Member in, can you keep your answers a bit more succinct? I recognise that they are very complicated and it is a complex issue.