Is talk still cheap?

As the Higher Education (Freedom of Speech) Bill makes its way through parliament, Julian Owen explores the legislation’s potential, practical impact on university life

Nothing highlights the complexities surrounding freedom of speech on university campuses more clearly than the case of Kathleen Stock. The former professor of philosophy at the University of Sussex resigned her post in October 2021 after her position on trans issues – objecting to proposed law changes allowing trans people to self-identify, saying things like “Many trans women are still males with male genitalia” – drew storms of protest on campus.

And beyond. Professor Stock’s “harmful rhetoric” reinforced “the patriarchal status quo,” said an open letter signed by more than 600 academics, pointing to a “tendency to mistake transphobic fearmongering for valuable scholarship, and attacks on already marginalised people for courageous exercises of free speech”.

The universities minister, Michelle Donelan, took a different view. “A sad day for freedom of speech,” she tweeted as Stock stepped down. The episode, she added, “only reinforces the need for our free speech bill”.

Introduced last May by the then education secretary, Gavin Williamson, the Higher Education (Freedom of Speech) Bill is still making its way through parliament. The plan – potential amendments notwithstanding – is for universities and student unions to be made liable for promoting freedom of speech and academic freedom, with a director of free speech and academic freedom overseeing matters from a vantage point on the board of the Office for Students (OfS).

“If you look at some of the intractable campus disputes – Sussex, or Bristol – might there have been a point at which the university would have found it helpful to say, ‘Right, we’re farming this out to the OfS, because we can’t make a decision’?” – Smita Jamdar, Shakespeare Martineau

While the aim of the bill may be worthy – people on all sides of the debate dependably preface their comments with variations on the ‘free exchange of ideas is the lifeblood of academia’ axiom – it is by no means clear how it will operate in practice.

“The way the legislation is drafted, it’s expecting universities to balance what are almost unbalanceable civil rights,” says Smita Jamdar, head of education at the Shakespeare Martineau law firm, who gave evidence to the parliamentary committee overseeing the bill. “If you say that a controversial speaker must have the right to speak without adverse consequences – the definition of freedom of speech – what do you do where they are met with individuals exercising their lawful right to say, ‘I think what you’re saying is appalling’? How does a university mediate that? If you try to say to staff and students, ‘you can’t protest’, you are interfering with their freedom of expression.”

The picture muddies further when we consider the attempts made to encourage participation in debates. “If you have a code of conduct which says you must communicate respectfully, or avoid using language which is exclusionary, that’s an intrusion into free speech in the purest sense of the word, but it’s probably necessary to make sure that everybody feels able to take part.”

In the same month that Stock resigned, Professor David Miller was sacked by the University of Bristol. Again, the appropriateness or otherwise of wholly free speech lay at the heart of the issue. Many – including 200 or so petition-signing academic peers – backed Miller’s right to say, in terms, that members of Bristol University’s Jewish Society were pawns of the state of Israel. Others preferred to argue that this and other claims of global conspiracies were bang-to-rights antisemitic and should be dealt with as such.

One of those in the latter camp was Nina Freedman. In 2019, the Bristol student was “an innocent 18-year-old standing in front of the university and telling them that this professor was unfit to teach”. Today she is the president of the Union of Jewish Students and concerned by the proposed legislation. “This bill could enshrine the rights of Holocaust deniers to come onto campus,” she told a Westminster Higher Education Forum policy conference on freedom of speech policy in January. “Universities would be unable to cancel a speaker in order to protect the minority students. [This] poses a huge risk to Jewish students on campus, who should not have to sit and listen to the relatively recent history of our community being twisted and revised.”

At which point it would be instructive to turn to another conference attendee, Joe Lewis, research analyst at the House of Commons library. “It’s important to note that freedom of speech is not absolute,” he said. “The legal duties make it clear protections only extend to speech that is lawful.”

Indeed, despite some proponents of the new bill insinuating that it will bring clarity to a currently lawless void, in actuality the legal picture is already a complex one. There have been legal duties pertaining to freedom of speech in HE since 1986, with elements found in the Education Reform Act, employment law, Human Rights Act, Equality Act, and Prevent duty guidance. If speech is construed to provoke violence, is discriminatory, amounts to harassment, or might encourage terrorism, it could be found to be unlawful.

Prof Paul Layzell, who leads a Universities UK advisory group on freedom of speech, says government must provide more clarity to the way the rules will be implemented.

 

On top of these intersecting laws, the bill adds overlapping duties and conflicting responsibilities. Paul Layzell, chair of the Universities UK (UUK) advisory group on free speech and academic freedom, gave the example of an event organised by one legal entity – the students’ union – and hosted by another – the university. UUK is working with Advance HE and GuildHE to draw up procedures to assist in navigating such situations.

“With clearer guidance we can help universities make these complex decisions, ensure the new legislation is proportionate and avoid unintended consequences, and assist the new director in the OfS,” said Layzell.

In theory, says Jamdar, appointing a director of freedom of speech is a welcome move. “If you look at some of the intractable campus disputes – Sussex, or Bristol – might there have been a point at which the university would have found it helpful to say, ‘Right, we’re farming this out to the OfS, because we can’t make a decision’?”

Even with UUK’s guidance, though, questions remain. “Guidance can only ever be that. It’s eminently possible for people in good faith, taking absolutely everything into account, to reach very different decisions on things like this.

“It’s also potentially a highly political role. Freedom of speech issues, when part of the culture wars, are very much of their time. We have seen a pendulum swing against some diversity initiatives, but who knows when it will swing back and what a future administration would see as important? If this person is appointed by the secretary of state, they might find themselves under political pressure about how and where to intervene; there are no real safeguards for their independence.”

“With clearer guidance we can help universities make these complex decisions, ensure the new legislation is proportionate and avoid unintended consequences, and assist the new director in the OfS.” – Prof Paul Layzell, Royal Holloway

Naturally, purveyors of hate speech have drawn most focus when debating the merits of the new bill, but what about pliers of pitiable nonsense? Should we guarantee university platforms to people insisting that Earth is flat, say, or run by a cabal of shape-shifting lizards?

“There are some very sensible questions to be asked about limitations,” says Jamdar. “There might be ideas which are fine for people to discuss on radio phone-ins, but do we really want to say that universities must allow them all and become deviated from their path of research and knowledge? Although we are dealing with values that we all instinctively agree with, when you try to articulate them you immediately hit very sensible, but hard to overcome, definitional issues. It’s been fine as long as we’ve been debating in the abstract, but when you stick them in a piece of legislation you have to be precise about it.”

On which note, let us recall that universities are not only to be made liable for guaranteeing freedom of speech and academic freedom, but promoting it. That, surely, is an awfully woolly word when it comes to legal definition?

“I think you’re right, it is pretty broad and ambiguous,” says Jamdar. “While I think it’s the most interesting part of the act – the one that might potentially change the culture, if we think change is needed – my anxiety is that it ends up being quite bureaucratic. You could, for example, see the OfS saying, ‘We would like a self-assessment from everybody about how you’ve promoted freedom of speech across the whole range of your activities, from general value statements through to how you facilitated controversial events.’

“Where ‘promoting’ would be genuinely helpful is if it can be used as the justification for ensuring that freedom of speech and academic freedom are appropriately considered in everything that the university does: marketing, comms, strategy, engaging with stakeholders, etc. You put it front and centre and say, ‘you might not like what we’re doing, but we have got this statutory duty’.”

Smita Jamdar suggests universities caught up in complex debates about the limits of freedom of speech, like the University of Sussex was during the case of Prof Kathleen Stock, may benefit from the intervention of the Office for Students from the outset.

 

Today, universities’ statutory free speech duties include being obliged to make their premises available irrespective of the views of the person invited to speak. In the future, according to the bill, to that must be added non-discrimination over the terms on which they are booked.

“That’s quite problematic,” says Jamdar, citing the example of a speaker likely to be met with protest. Additional safeguards may be required, such as the provision of security, or making the event ticket only. “Arguably, under the bill, that would amount to discrimination on the terms on which you’re allowing the facilities to be used. How you balance that with your broader duties around safety and looking after the welfare of staff and students, I don’t know.

“We never stop and ask ourselves, ‘what in a university’s core business – to teach, to research, to contribute to society – is crowded out to allow more focus on [following new legislation’s directives] and the demonstration of compliance?’ They will manage, because they always do, but it will be at a cost.”

Adding all the complexities together, Jamdar concludes that, far from promoting free speech, the bill may actually inhibit it. “The law of unintended consequences applies to everything, and I worry it could apply here. No institution can say, ‘We’re not going to host any controversial speakers,’ because you’d be breaching the duty straight from the off, but I think there will be a form of self-regulation. Risk aversion means people will think, ‘Is this really worth it?’ We may end up tainting the discussion, because the only people willing to have it are the extremists on every side, and all the nuanced and sensible conversation gets crowded out.”


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