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

Matt Western Excerpts

Monday 13th September 2021 Public Bill Committees

[The Chair]

Good afternoon. We will now hear oral evidence from Professor Eric Kaufmann, professor of politics at Birkbeck College, University of London, and Professor Matthew Goodwin, professor of politics and international relations at the University of Kent.

[Matt Western (Warwick and Leamington) (Lab)]

Q181 Good afternoon to you both. Thank you for joining us today, and for your submissions. I have several questions to start with. Academic freedom is much referred to, and I have always viewed it as something of a privilege. Perhaps you could describe your definition, and why it has such an important status.

Professor Kaufmann: The right to question received wisdom, the right of academics to question—

[The Chair]

I am afraid the acoustics in this room are very poor. Do you think that you could speak up as though you were addressing a hall of 500 students?

Professor Kaufmann: I have not done that in a while. The freedom of academics to test and question received wisdom, including public commentary and extramural speech, is how I would define academic freedom. It needs to be protected to a greater extent, perhaps, than in other professions to allow academics really to challenge convention without risking a detriment. The special thing about universities is that you can do that.

[Matt Western]

Q Is that something that you earn as an academic?

Professor Kaufmann: No, it is something that you have as an academic. It needs to be protected. If it is something that you have to earn, that would suggest that there are two tiers. I think that even a temporary, adjunct academic should have it.

Professor Goodwin: I would agree. I would define academic freedom as the ability to challenge conventional wisdom, to voice unpopular opinions and to go against the grain without suffering adverse consequences from within your institution.

[Matt Western]

Q This question is for Professor Kaufmann. About 50 years ago, during the Red Lion Square disorders, Warwick University student Kevin Gately was sadly killed in trouble between fascists and a group called Liberation. He was the first person to die in public disorder for 55 years. Does the legislation protect our students of today and tomorrow, to avoid those sorts of confrontations in future?

Professor Kaufmann: I do not think anyone can predict. That is a public order question and the determination of the risk would have to be made by the police, for example. I think this is quite far from the situation that has given rise to the need for the Bill. It is not really a public order Bill; it is much more about protecting the everyday rights of academics to speak out, speak their beliefs and research without detriment. Yes, if there is likely to be some kind of public order incident, the police will have to give advice on that.

[Matt Western]

Q That protest was about no-platforming, so I think it is related to the legislation—I am not raising a random thing with you. Do you see in the Bill consequences for the future of free speech and hate speech on our campuses?

Professor Kaufmann: The Bill will have a very important effect. Sometimes the point is missed when we focus in on a few incidents of no-platforming. Really, the big, big issue here is the monumental chilling effect that academics feel: in a UCU-sponsored study, 35% of academics—UCU members—said that they felt restricted in saying what they believe. That is 35,000 academics. In a King’s study, 25% of students claim that they will not say what they believe—that is 500,000 people. We are talking about an absolutely massive problem here, and I think it is very important to get that point across. Issues around no-platforming are the tip of a vast iceberg of chilling effects and self-censorship that I believe is distorting the truth-seeking mission of the university. The university has to be a place where we can pursue truths, even if they go against conventions and mores of the time. The no-platforming incidence is really the crux of the issue, which the Bill will address.

[Matt Western]

Q Professor Goodwin, we have heard a lot about self-censoring. I am not an academic or a scholar of Freud, but he suggested that we all self-censor all the time, so what is the issue here?

Professor Goodwin: I will speak from personal experience to give you an idea. I publicly accepted the vote for Brexit in an environment where only around 10% of academics either supported Brexit or tend to support conservative or right-wing political parties, and that really makes me an outlier. The only reason why I, and colleagues who might hold gender critical views or a more nuanced interpretation of British history, have been able to speak up about some of those issues is because we have often been professors with job security and tenure, and are very difficult to sack.

If you are a junior academic or are on a fixed-term contract, speaking out about issues that go against the monoculture in many of our universities comes with very real consequences, and I know that from the many emails that I have received from junior academics and members of staff at universities who simply feel unable to voice their true views on those issues because they are fearful of what will happen to their careers. Indeed, in some cases—including friends of mine—they have been sacked or disinvited from workshops. As Professor Kaufmann points out, the temptation in this debate is to say, “There are only a few cases. Isn’t this about using a sledgehammer to crack a nut?” When you are looking at rigorous and robust surveys that suggest that one in three academics are self-censoring, that is a very big problem in a country that has long prided itself on having some of the best universities in the world, which are based on viewpoint diversity—being able to challenge, critique and voice unpopular opinions. However, many of my colleagues do not feel able to do that, as you heard last week and as I am sure you will hear this week, as well.

[Matt Western]

Q Do you not think that we are all outliers in one way or another?

Professor Goodwin: When you look at institutions that lean very heavily in one particular direction— 75%, 80% leaning toward the left of the political spectrum— we know from research that those kinds of monocultures also encourage people to become more radical over time; Cass Sunstein, for example, has written a book about that.

However, we are also dealing with institutions that are responsible for the next generation. I would want my students to disagree with me on a whole range of issues, but I would also want them to be exposed to very different viewpoints throughout their university experience: viewpoints on the left, on the right, from above and from below. Ultimately, that is what gives us the ability to think critically and it strengthens our democracy. At the moment, however, we know clearly from the King’s study—I think you are speaking to the author later— that a quarter of all university students in the UK are self-censoring, which is a very depressing statistic.

[Matt Western]

Q You have talked of the fear of many left-wing academics of normalisation, whereby giving a platform to fascists and the like would normalise their views. Whether or not their views become normalised, would you be prepared to see an overt fascist speak on your campus and, if so, how do you think that would square with university management’s myriad duties to student welfare and social cohesion?

Professor Goodwin: I can speak from personal experience; I have invited people from across the political spectrum to speak to my students over the years. I have had Conservative, Labour and UK Independence party candidates come to speak to students. I would have invited somebody from the British National party or the National Front, were they available.

Those experiences taught me and demonstrated very clearly that students are more than capable of being exposed to a range of different views and of challenging those views, because ultimately we are here to develop critical thinkers; we are not here to put students in ideological monocultures that only give them one view of the world.

One thing I would say, which I think is a very important point for this Committee, is this: if you look at the United States and at levels of trust in universities in America over the last 10 years, you will see that they have declined significantly, as this debate has become very polarised. The last thing that I think we would want in the UK is to repeat that experience, because people are increasingly looking at higher education institutions as being very political institutions—being very lopsided. It would be a great shame if that were to happen in this country.

[Matt Western]

Q Professor Kaufmann, I will put a question to you, if I may. In the Policy Exchange report that you co-authored, a very negligible number of academics were ready to support a dismissal campaign; according to my notes, the figure was 12.5%. If so few are willing to support such campaigns, are right-leaning academics’ fears about cancel culture not just a backlash reaction to a general left-leaning academy?

Professor Kaufmann: That is a really good point: very few academics—only about one in 10—are willing to support a given cancel campaign, which is good news.

The problem, in a way, is that all it really takes is only a very small minority of radical activists to get, let us say, an attack on a gender critical feminist. I mean, these are small, tightly organised networks, but they are able to move mountains because nobody necessarily wants to stand up to them.

Most academics are not in favour of this stuff, but they are also scared to stand up to it, because if you stand up to people who are attacking gender critical feminists, you might be labelled as a transphobe. You are not a transphobe, but by critiquing people who claim to be acting for the benefit of the trans community, you fear that that aura will stick to you. What happened at Cambridge, with Arif Ahmed, is instructive. You have heard from him, and essentially he struggled to get 25 signatures of people who were willing to put something to a vote on whether to change the wording of the university’s policy. Once it was put to the vote, it passed by 80%.

There is a lot of reluctance; people do not want to stick their heads above the parapet. That is the issue that we face. I have looked at survey data on this: an academic individual is actually more pro-free speech than a non-academic individual, when you account for their ideology; a far leftist who is not an academic is less supportive of free speech than a far leftist academic.

The issue, however, is that in the university we have such a skew, because most of these claims of coming from the far left. Because they make up 25% to 30% of academic staff in the social sciences and humanities and because they make up a significant share of students, we are going to see a lot more of these challenges to free speech. It is not because academics are any more anti-free speech than non-academics—in fact, it is the reverse. It is just that it is a function of the ideological distribution of academics. That is why we see more of these events in universities.

[Matt Western]

Q I have a final question for Professor Kaufmann. Why is it that, as you made clear in your October 2020 article for UnHerd, active mobilisation by representative Government is necessary to reverse critical race theory’s grip on elite institutions? Is not a softer approach more desirable?

Professor Kaufmann: On critical race theory?

[Matt Western]

Yes.

Professor Kaufmann: I never endorsed any Government action on critical race theory in universities—only in schools where the teaching is compulsory and you have to pass the element. In a university, it absolutely should be taught; people are free to take it and to teach it. It is a different thing: you are dealing with adults. In a school where every pupil has to be taught critical race theory, we have a compelled speech issue, a freedom of conscience issue.

I think critical race theory is a conspiracy theory. I am quite open about that. However, there is high critical race theory, which is interesting, is worth teaching and has some insights. The vulgar critical race theory that is appearing in schools and some diversity training, where they separate pupils by race and say that some are oppressors and some are oppressed, is nonsense. However, in a university classroom, people are free to take what they want and teach what they want. In schools, where we are not dealing with adults and it is compulsory, there is a freedom of conscience issue. I make that distinction very clearly.

[The Minister for Universities (Michelle Donelan)]

Q Thank you both for coming in. Professor Kaufmann, in the Policy Exchange paper you co-authored you recommended a statutory tort. I wanted to ask you why you think that that is so important, and how you think it will work in conjunction with the Office for Students complaints scheme.

Professor Kaufmann: It is important for academics who might find themselves in a situation in which they are disciplined for speech to have recourse against their institution if that institution is not upholding their rights to freedom of speech. The point of the statutory tort is simply to allow an avenue for those with grievances that cannot be met within their institutions. Very often, I am sad to say, many institutions are not doing a successful job of upholding this right for many academics —hence the need for recourse to the court system.

--- Later in debate ---

[The Chair]

We have until 4.45 pm, so I hope that questions will be brief.

[Matt Western]

Q Thank you, Mr Katwala, for joining us today. I want to ask you a few questions. You have put on record your concern about this Bill opening up universities and student unions to being sued an unlimited number of times by people such as David Irving. Could you expand on those concerns?

Sunder Katwala: The underlying thought is that the legitimate concern of the Bill is to protect academic freedom expansively, to symbolically reinforce that that is the case, and to provide new mechanisms to deal with disputes. Everybody who is interested in academic freedom would say that it is in law and we should be protecting it, and that is being driven by the fear that there is overcreep from the side that wants to take away academic freedom. In terms of how you implement that, if you say, “Let’s defend lawful speech because lawful speech is free speech, and lawful speech is academic freedom,” that sounds very good, as long as you can answer the question: is all lawful speech something we want to defend as academic freedom, or are there categories of lawful speech that we do not want to defend?

Most racist and antisemitic speech does not meet the legal threshold of being unlawful. Intimidation and violence are unlawful, and other forms of stirring up are unlawful, but holocaust denial is not unlawful. We may wish to stigmatise it—we would not want it on our charity board or in our political parties, but different institutions have different rules. In this case, what are the principles and categories by which we might say that there is a form of lawful speech that we should not be protecting under academic freedom because it is inimical to academic freedom? That is the tension.

For example, if the Government say to universities that they should adopt the International Holocaust Remembrance Alliance definition of antisemitism, that is an important thing to do for antisemitism. There are two reasons to do that: one is symbolism—antisemitism is bad—and the other is to prohibit on campus speech that is currently lawful but also antisemitic. Comparing the Israeli Government to Nazi Germany, for example, is a lawful position that we wish to stigmatise. If you have this measure and the IHRA definition, you have potential tension at the boundary between the lawful speech that you are trying to exclude and the lawful speech that you are trying to protect.

[Matt Western]

Q Briefly, what sort of impact do you think this is going to have on student unions?

Sunder Katwala: With student unions, it is there to push back against not inviting, disinviting or protesting against someone whose political views you do not share. Wide boundaries are good, but are the boundaries of lawful speech exactly the boundaries you want to protect as academic freedom, or are there some hard cases? I will come on to this, but I think there are probably three different sets of hard cases where the boundary gets complicated.

[Matt Western]

Q You said you can imagine cases of hypothetically cancelled speakers claiming or pursuing hypothetically lost fees. Will you explain that further, and what amendments would you like to be made to the legislation in order to combat it?

Sunder Katwala: What I am not clear about at this stage concerning the legislation, the principles, the operationalisation and so on is how far these things are going to be broadly symbolic—so that they are just there—or how far it goes. What are the damages? If I am disinvited because I am David Irving—I have published a book and then I was disinvited because people read the High Court judgment—what is the material loss to David Irving? I suspect that it is quite small, but we do not know. That is the level of detail that the legislation does not take us to.

[Matt Western]

Q Could that include reputational damage?

Sunder Katwala: Yes. Mr Irving has a very low reputation, because the High Court has said what it said about him, so him not being allowed to proceed with his event at the University of Cambridge and so on would add to the reprehensible reputation of a man with an already low reputation. There might be other cases in which somebody loses significant amounts of reputation by being cancelled for the first time. This is a level of operational detail that, obviously, I do not think that the legislation is designed to get to. What are the scales of these kinds of interventions?

[Matt Western]

Q I am interested in your view of how this will interface with the proposed online harms Bill. Do you have any thoughts on that?

Sunder Katwala: The online harms Bill has the opposite principle—again, it is a good principle—which is that there is some lawful speech that is reprehensible and we wish to stigmatise it, even though it is lawful. The example that I put to one of the social media platforms was, “No blacks in the England team—keep our team white.” It is lawful, reprehensible racist speech. It is also within the rules of Twitter, Facebook and Instagram at the moment, and they are embarrassed about that and looking into it. I feel that an event at a student union, “No blacks in the England team—keep our team white,” does not seem to be the kind of event that we want to protect, and yet that is lawful but reprehensible speech, which we want to stigmatise, even though it is free speech within the law.

If I sit in my living room or go to the pub and say, “Marcus Rashford isn’t English—keep our team white,” I am not breaking the law. I might be if I put it on the internet in particular ways, but I am not in that case—I have not hit the threshold for racist abuse. If I sent it to him with the wrong kind of epithets, maybe I would. This is a question of wide boundaries for sure, but are there hard cases for how far those boundaries go?

[Matt Western]

Q You heard the previous session. There was a lot of talk from the previous two witnesses about self-censoring and so on. Do you share those concerns, or do you think, as I was perhaps suggesting, that we all self-censor to a certain extent? As we heard from a witness last week, that is just the way of the world—you get on with it and you make your case.

Sunder Katwala: The harder question about self-censorship is: what will these mechanisms do about self-censorship? They might change the culture in a very positive way, because everyone feels reinforced and is not worried about stigmatisation, but they might change the culture in a rather negative way, where everyone is bringing cases and counter-cases against each other, and the processes, the punishment, could get worse if we have a lot of tit-for-tat things. There might be something in the culture of a regulator about the treatment of, say, vexatious cases as opposed to substantive cases, which might be quite important if the stress actually comes from the possibility of the cases. Because self-censorship and chilling effects are cultural points, it is not obvious to me that we know how these mechanisms affect that broader cultural plane.

[Michelle Donelan]

Q Your recent research suggests that more divisive voices and controversial issues are often amplified online. Do you agree that that influences how freely the majority of people feel able to express themselves?

Sunder Katwala: On the whole, in terms of the British public and the general population, these current issues of free speech and academic freedom are important issues in our political and media culture and so on; they are not gripping the broad public. It is a much less heated and polarised debate about these issues in Britain than in the United States of America. It might be the case that in five, 10 or 15 years, we have a much more heightened culture, but there is a very broad balance, a middle, in British society. When we have engaged in conversations about the worry about people being called racist before they have been racist, but also about wanting decent debates about race and integration that do not cross boundaries, a great many people are trying to strike those balances in a way that is good for freedom of speech but has boundaries.

A lot of people think political correctness can go too far if you take it too far, but they will then say, “But it had a point in the first place.” To give an example, research by More in Common found that seven out of 10 people in this county think that political correctness can be a problem if you overapply it, overreach with it and go for trivia. Seven out of 10 people think that hate speech can be a problem, because we are letting too much go. The median person in Britain thinks that both those things are true. At the same time, they are probably frustrated that we are removing episodes of “Fawlty Towers” from archives. It is entirely trivial, while we are letting neo-Nazi content run riot on Facebook. There is awareness of this tension, and frustration that you could overreach in different directions.

What is much more the case in America is that people have picked a side. Therefore, they are always on one side of every question. We definitely have the possibility of having that culture among the most politically engaged—the people who spend most of their time on the internet, and perhaps the people who write the most newspaper columns—but most people are quite frustrated with that, because they would see that there are good public goals here that might be complicated to get right.

--- Later in debate ---

[The Chair]

Q We now welcome Nicola Dandridge, who is the chief executive of the Office for Students. Will you tell us a bit about what that is? What is the Office for Students?

Nicola Dandridge: We are the independent regulator for higher education in England. We have been up and running since 2018.

[Matt Western]

Q Thank you for joining us today, Ms Dandridge. Just looking through the legislation, I have a few points to make. It does not seem to be particularly clear about the future relationship between the Office for Students and the Office of the Independent Adjudicator. Is that clear to you from the Bill? Perhaps you will explain how it could work.

Nicola Dandridge: We work collaboratively with a whole range of organisations, including the OIA and other regulators. The way to make that work is to have discussions with them, to make sure that there is clarity about responsibilities and who does what, and that that is clear between ourselves and to universities, colleges and students. I am a stakeholder, so I anticipate that exactly the same will happen here. The new director for freedom of speech and academic freedom will speak with the OIA to resolve who does what and how we can make sure that that is as clear as possible to staff, students and everyone who is interested in this area of activity.

[Matt Western]

Q Can you imagine situations in which one body might go to the OIA and another to the OfS, and how that might be reconciled?

Nicola Dandridge: That is exactly the sort of thing that we need to make clear. I do not see that that is an insuperable problem. We just need to make sure that we have sorted it out and that there is clarity for everyone involved.

[Matt Western]

Q You mentioned the director for freedom of speech and academic freedom and the appointment process. I guess I have certain concerns about how the chair of the OfS was appointed. How do you imagine—it is not clear from the Bill—the director for freedom of speech and academic freedom will be appointed? Should how that will come about be included in the Bill? As we have heard in previous sessions, there are concerns—across the House, depending on which Government are in place—so who should be involved in that appointment? I assume that you would want to be involved, for example. Maybe you should have the ultimate say. Do you have any thoughts about that, and should it be included in the Bill?

Nicola Dandridge: I anticipate that the process will follow the usual public appointments process and be conducted by the DFE. That is probably a question you need to put to the DFE. It is unlikely to be a decision taken in-house by the Office for Students.

[Matt Western]

Q Do you have any thoughts on the skills that that person might need?

Nicola Dandridge: They will need to believe in the importance of freedom of speech and academic freedom, as the OfS and all of us do. That goes without saying. In this debate, I have been interested to hear that they should be a lawyer. Undoubtedly, I think a legal background would be helpful, but I really do not think that being a lawyer is essential. It is not as if we are going to lock the director up in a room somewhere with no access to any of our existing resource. We have a very talented legal team already, who will provide considerable advice and support to the director. So I do not think that being a lawyer is essential, but I do think that having a legal background might help, but absolutely not determinative of who is appointed.

[Matt Western]

Q Have you had any conversations with the current chair or the DFE about what the scale of the department—it will not be just one individual; it will be the director of freedom of speech plus X people working within the department—will be, what the cost will be and how that will be funded? Would the OfS need an additional budget?

Secondly, do you have concerns about what will happen for universities and student unions? One of the points that came out from the BEIS report, which you may have seen, is what significant costs there will be for universities and student unions, which clearly, after the past 18 months, are really struggling financially anyway.

Nicola Dandridge: It is very difficult at this stage to predict what the pressures on the Office for Students will be as a consequence of the proposals, but certainly the complaints system is likely to generate quite a lot of work. It is really important that we have the capacity to deal with that properly without compromising our important work on quality and standards, and access and participation. This is an area that we will be keen to discuss with Government to ensure that we are properly resourced to do this work well in all its complexity, without compromising our other work.

[Michelle Donelan]

Q Thank you for attending, Ms Dandridge. When considering the impact that the new director could have, we can look at the impact that the director for fair access and participation has had. Could you outline the positive impact that you think having somebody solely responsible for that area has had?

Nicola Dandridge: In my view, and I think the view of many others, the role of the director for fair access and participation has been really significant in setting expectations, driving through the importance of what is also a very complex agenda, engaging in discussions with universities, students and student unions, and speaking publicly about the importance of access and participation. I think the impact that the director has had has been really significant, and it is a good analogy for the impact that we hope the director for freedom of speech and academic freedom will have similarly.