The new director for freedom of speech and academic freedom – who will sit on the Office for Students (OfS) board and oversee the enforcement of the government’s higher education freedom of speech legislation – does not need to have legal training, the regulator’s chief executive has suggested.
Referring to the eventual nominee for the new position, OfS head Nicola Dandridge told MPs in a specially organised committee on the Higher Education (Freedom of Speech) bill: “I don’t think being a lawyer is essential”.
Said Dandridge: “I’ve been interested by this debate that they should be a lawyer. I think, undoubtedly, a legal background is helpful. But I really don’t think that’s essential.”
“We have a very talented legal team already, who will provide considerable advice and support to the director. So I don’t think being a lawyer is essential. But I do think having a legal background may help but absolutely not determinative.”
The chief executive of the regulator – recently confirmed to be continuing in her government-appointed role for another four years – added: “It’s really important that we have the capacity to deal with [freedom of speech issues] properly without compromising our really important work on quality and standards and access and participation. So this is an area that we will be keen to discuss with government to make sure we are properly resourced to do this work.”
The legislation would require publicly-funded HE providers to sign a new covenant to “actively promote free speech” on campuses. It will institute a new champion for free speech and academic freedom, on the board of the OfS, who will monitor universities and students’ unions and have the ability to levy fines for infringements. Student unions (SUs) are, for the first time, included in academic freedom legislation. The new position of director for freedom of speech and academic freedom will have powers to investigate cases and oversee a new complaints scheme for students, staff and visiting speakers. MPs debated the ideal qualifications for the future officeholder intently, questioning a bipartisan group of academics and HE figures about the likely requirements of the role.
Within a few years, universities will suddenly be arranging league tables of academic freedom
– Matthew Goodwin, University of Kent
In a cordial but testy exchange with Eric Kaufmann, a professor of politics at Birkbeck College, Emma Hardy, the Labour MP and former shadow universities minister pushed the academic – who robustly supports the government legislation, and, specifically, the position of a director of freedom of speech – to discuss the powers of the new job. Hardy expressed concern that the legal powers and responsibilities of the role have not been accounted for.
Kaufmann said he thought “all the director of academic freedom has to do is essentially enforce the letter of the law”, adding: “I don’t think you need to have a lawyer in there. I think just somebody who understands the spirit of the legislation. It’s not too difficult.”
But Hardy questioned whether the director would need legal expertise to tread a careful course through multiple – and perhaps competing – freedom of speech laws.
Asked Hardy: “But they would have to make decisions between where does freedom of speech fall between the Equalities Act 2010, this piece of legislation, and the Counterterrorism and Security Act from 2015. So, would you not assume, therefore, they should have at least some knowledge of what law, if they’re making these rulings?”
Kaufmann said he thought the director would be “proactively applying the law”, which was preferable to the “reactive” and “expensive” route of litigation. But Hardy’s questioning persisted: “So, this director of freedom will have some knowledge of the law, not be a lawyer and make law-based decisions, but not within a court?”
This issue was also raised at the committee by Prof Paul Layzell, the principal of Royal Holloway, University of London, who attended as chair of Universities UK’s advisory group on free speech and academic freedom. “Vice-chancellors and their senior teams are concerned about the interplay of this legislation with other legislation,” Prof Layzell said.
Layzell said the bill “could be helpful” as long as it “does not cut across existing mechanisms in universities for complaints”, adding that if the bill clarifies the rules “where a number of issues come together” and “brings transparency and clarity, then it’s welcome”.
Jonathan Grant, professor of public policy at King’s College London, described the bill as “somewhat overkill”, warning it “conflates a number of issues”.
“When you look at the data, it is very, very rare that events are cancelled when people get no-platformed. But I do have concerns around the chilling effect,” he continued. “If we could move our conversation onto the chilling effect, and how we have a more open culture on campus where people have different views, and feel content expressing them, I think that would be a much more useful conversation.”
Grant said a survey conducted by The Policy Institute at King’s College London found that many students in the humanities perceive their lecturers as biased toward a political view. The report that contained those findings summarised an underlying dichotomy: “The tension here is that the students believed that their freedom of expression was being threatened by biased and partisan reading lists provided to them by their lecturers. However, as viewed through the lens of academic freedom it would be inappropriate for university management to intervene and suggest or require more balanced reading lists.” For this reason, Grant said, legislation was inappropriate.
Prof Matthew Goodman, professor of politics at the University of Kent and associate fellow at Chatham House, welcomed the legislation. He predicted that “within a few years, universities will suddenly be arranging league tables of academic freedom; these kinds of things that tend to come with changes that are brought about by law”.
He told MPs freedom of speech in academia was a growing global problem: “The Canadians are talking about this, the French are talking about it, the Americans are talking about it, nobody has really got a hold of it,” adding: “There is a massive opportunity for the UK here to emerge globally as a leader”.
A public survey commissioned by the Higher Education Policy Institute (Hepi) and the civic university charity UPP Foundation found that a majority of the British public believes that people should be allowed to speak to students at university so long as their views are not illegal (55%). A quarter (24%) support a more libertarian perspective, where anybody can speak to students regardless of their opinions.
Earlier this year, Nick Hillman, chair of Hepi, told delegates at the Universities Human Resources (UHR) 2021 conference that the freedom of speech bill sought to redefine academic freedom as most people in higher education understood it.
“It says academic freedom of academic staff, means ‘their freedom within the law’ to question received wisdom, and so on and so forth, and ‘within their field of expertise’,” he explained. “So it’s redefining academic freedom, as, you know, a chemist having academic freedom to speak about chemistry, but maybe not to speak about politics.”
Hillman had previously told University Business that he feared “whoever does the job… it may prove to be an almost impossible job to do well”.
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