MPs have been scrutinising the free speech Bill

As you’ll know, right now a government Bill on freedom of speech within universities in England – that includes specific proposals on students’ unions – is weaving its way through the House of Commons.

You can find all of our coverage of the Bill on the site here.

Having received its second reading before the summer recess, it’s now reached the “committee” stage, where detailed examination of the Bill is supposed to take place. That includes taking evidence from a range of “expert” witnesses, and will go on to consider “line by line” scrutiny of the Bill and any amendments proposed by members of the committee.

Lots of amendments are starting to tumble in – including one from the government that would, for some reason, exempt the JCRs and MCRs (ie the SUs) attached to Oxford and Cambridge colleges – from the proposed duties on SUs.

Across two sessions on Tuesday 7 September, the committee heard evidence from a range of expert witnesses and you find the full transcripts of the sessions in Hansard, the official record of Parliament.

Here we’ve pulled out some of the most notable moments.

Taking Stock

First up was “gender critical” Sussex academic Kathleen Stock, who argued that universities might seek to shy away from controversy because of marketisation:

It could be concluded that it finds me embarrassing because it has to sell Sussex to students, particularly left-wing students, particularly north London students. That is a difficult demographic to manage when dealing with the issues that I deal with.”

Labour committee member Kevan Jones thought that any legislation to tackle that would fail because a university might just not employ someone like Stock:

If the only motivation behind it is that somehow they feel that if they allow you and others to express your different views—which I fully support, personally—that will put off students from going there, are they not going to just not employ people like you… That is not covered by the Bill”

The problem is that it is covered by the Bill:

That objective is securing that, where a person applies to become a member of academic staff of the provider, the person is not adversely affected in relation to the application because they have exercised their freedom within the law and within their field of expertise to do the things referred to in subsection (6)(a) and (b).

Obviously, it’s always better when both committee members and witnesses have actually read the Bill they are purporting to scrutinise.

Range of opinions

One of the witnesses was Trevor Phillips, who reminded the committee at length that a long time ago he was the first ever Black President of the National Union of Students:

On the executive that I led, there was a broad range of opinion, including Conservatives, Liberal Democrats and people who were, believe it or not, way to the left of me. Never a day went by without some ideological dispute or argument breaking out in public. One of the things that strikes me very forcibly is that when I go to campuses and when I read about student politics, there does not seem to be that range of opinion and argument going on on campuses and in student politics. I can only read it as the sense, not so much that people are intimidated, but that they just do not think it is worth having the argument. That is very disappointing, because that is where some of our cleverest and smartest people, some of whom are sitting in this room, and some of whom share the Benches on both sides of the Commons, have come from—from that culture of disputation and argument, with a lot of robustness, but a level of respect. That does not seem quite to be the case today.”

Amusingly, former Labour Shadow HE minister wasn’t that interested in Trevor’s series:

I would like to return the focus to what is written in the Bill, rather than to re-argue the Second Reading arguments on the merits of whether we should have a Bill or not.”

In an exchange about what SUs would and wouldn’t be allowed to do, everyone got confused. John McDonnell said:

Trevor, my point is about the contradiction in this legislation. We could have legislation that forces the student union to give a platform to the Chinese Communist party to advocate the genocide of the Uyghurs.

To which Trevor replied:

I do not think that there is anything in the legislation that will force a student union to do that. What I would agree with is that it is entirely possible that a group of three students might decide that they want to do something like this on campus. I get that. I am afraid that I have to say that if that is what happens, that is what happens. The student union can say, “Well, you can’t do it on our premises”—I think that is fine.”

John McDonnell then had to point out that under the legislation, that would be challengeable.

Expertise

One bit of the Bill is about “expertise” – academics will have academic freedom “within” their field of expertise. This is being interpreted as a dig at academics that claimed academic freedom and expressed views on Brexit when they were, for example, experts in Physics or Psychology.

Cambridge academic Arrif Ahmed agreed that would be a problem:

There are difficulties around defining a field of expertise. To use an example reasonably close to my own heart, if you take Professor Richard Dawkins, one could argue that theology is not his area of expertise. Many theologians would argue that it is not even his area of competence. I would dispute that myself, but it could be argued. Nevertheless, we would certainly want a Bill that protects his freedom to muse about religion as he likes. That is one issue.

The second issue… is that much innovation in science—and I use the word “science” very broadly—comes from cross-fertilisation between fields. Biologists might have insights into economics, let us say, even though it is not their field of expertise or perhaps even their field of competence. That is often where the really interesting and innovative insights come from. A Bill that restricts academic freedom to one’s area of expertise might well have a chilling effect on those kinds of interactions. “

Expect the government to drop this “field of expertise” thing in coming weeks.

Chilling effect

One worry many have about the Bill is that in trying to get rid of “cancel culture” it might silence legitimate student protest. Man Met academic Stephen Whittle argued:

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.

Later Michelle Donelan said that the Bill “does not prevent” protest and said she would be happy to “have conversations offline or further written evidence on that”. That sounds like progress.

Complaints

Many “issues” concern a bunch of students on one side complaining about equality and diversity issues, and an academic on the other arguing their free speech is under threat. Right now the students could complain all the way to the OIA, and the academic could complain to the new OfS free speech ombudsperson.

Legal expert Smita Jamdar had concerns about the two bodies, and the ability of those with money to go straight to court:

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?

Later Michelle Donelan argued that the newly proposed “legal tort” for people who feel their free speech rights have been infringed would be great:

Do you acknowledge that judicial review is an expensive process, so it will exclude a number of people? You reference the internal process, but we have heard from various students and academics outside this Committee who have felt that the internal process has let them down. That is why we are bringing forward legislation: to assist and to acknowledge that the current process is not capturing all of those people.”

Smita wasn’t so sure:

Is judicial review expensive? In comparison with the kind of litigation you could get into if you are dealing with a statutory tort—where there are days of witnesses giving evidence, assuming it goes all the way to trial—judicial review is not expensive. Civil proceedings of this nature can be far more expensive because they are so oral evidence and fact driven. That said, currently, if a student was unhappy with an internal process of a university they could also go to the Office of the Independent Adjudicator—they have got that route. The OIA would look at that because they can look at any act or omission on the part of a university.

And Smita was also worried that Sus might just not bother with external speakers:

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.

Clubs and socs

There was also confusion about student groups. Lloyd Russell-Moyle said:

I wanted to bring it to student unions. This Bill puts a liability on student unions, and I have just set the budget for the University of Bradford’s student union in the lunch break. They are, of course, very often financially perilous bodies, relying on money from their parent institution. Is there a danger that this provides a chilling effect for trustees, such as myself and others across the country, to allow students to exercise their full autonomy? For example, what I mean is that we have the Conservative society, the Labour society and so on, which are all autonomous in their organisation within the student union, affiliating to the student union. Is there a danger that if one of them suddenly decided that they did not want a speaker to come along, we would then have liability for those students’ autonomous actions?

Smita shared the concern:

The answer to that has to be potentially, yes. It would very much depend on what the relationship between the group in question and the student union was: whether it was a formal society of the student union, or a more informal gathering. This morning I heard a suggestion that student unions could make a decision at an institutional level about certain events, but then the individuals would still be free to go to the university and say, “We want to hold this event even though the student union has not allowed us to.”

The next sitting of the committee will be on 13 September 2021.

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