Can OfS cancel cancel culture?

The second reading of a bill in the Lords is very much a chance for peers to offer general opinions on legislation and the issues that underlie it.

Overall the opinion of the Lords appeared to be split on the need for the Higher Education (Freedom of Speech) Bill – but almost universally dubious about the text that is on offer.

As such, if the rules of your drinking game had been to drink two fingers each time someone suggested that an aspect of the bill might need improvement as it works its way through the upper house, you’d have been needing more than a couple of Alka-Seltzer the morning after the night before.

Throughout the process the quality of the bill has been a real concern – whether or not you feel the issue of freedom of speech on campus is something that is worth the time and effort required to legislate, those on the red benches seem to think that the bill as it currently stands is riven with contradiction, clashes with other duties, and surfers from plain poor quality drafting.

If you’re a fan of parliament, the quality of debate over the bill in the Commons has also been a concern – characterised by the use of cherry picked stats, a handful of over used anecdotes and an almost universal lack of understanding about what is happening in universities or how it might be addressed.

The Lords had a much better debate, with two stand out speeches that were both, as it happens, against the bill – those of Lord (William) Wallace for the Liberal Democrats, and Baroness (Shami) Chakrabarti for Labour. But there’s still a sense that nobody in parliament really understands the “problem” that is trying to be fixed here – and committee stage looks set to have its work cut out.

History boys

As you might expect, there were many peers that drew on their own years at university as evidence or background for their contributions. Lord Wallace used the history of student protest and vigorous on-campus debate to question whether what was on the table would make any meaningful difference to the scrappy but honest record of higher education thus far:

There is nothing new about student protest or arguments about the limits of freedom of speech in universities—and I have been an academic for 40 or more years. The question is whether the imposition of a heavy external burden of intrusive regulation, with the introduction of a new tort that will transfer large sums of money from university funds to lawyers through litigation, is a proportionate response to the limited number of unacceptable instances we have seen”

He situated the Freedom of Speech Bill within wider government trends that run counter to the Prime Minister’s idea of a “global soft superpower” – noting that a review of foreign and security policy had found that the most valuable components of this international influence included:

…the BBC, the British Council, the quality and financial scale of our overseas development programme, the reputation of our universities, and the strength of our cultural sector. Since then, the government have cut the aid budget, sidelined the British Council and repeatedly attacked and financially weakened the BBC. Now this bill threatens to weaken the global standing and reputation of our universities by extending government oversight of academic debate, appointments and promotions.

The freedom of speech “crisis”, to Wallace, was very much an American import – with examples and talking points imported wholesale. He poured scorn on the idea of English universities being “hotbeds of liberalism actively discriminating against honest conservative thinkers” as a talking point from the anti-intellectual US right – asking pointed questions about the way Policy Exchange is funded in the mean time.

And as a former visiting professor at the Central European University he clearly has the right and experience to raise much-warranted concern about the OfS chair’s support for Viktor Orban.

Ignorance is strength?

Baroness Chakrabarti was one of many to refer to Orwell in debate – but the points that she raised were far more original and considered than that literary saw suggested. Her own support for freedom of speech was expressed alongside her support for all other fundamental rights and freedoms:

Freedom of speech is not advanced by particularism, complex or onerous regulation or government tsars but when we each practise what we preach, lead by example and understand that it is the ultimate two-way street in a human rights framework built upon equal treatment, the very antithesis of which is partisan protection and hypocrisy. In short, my speech cannot be free while yours is always treated as a little more expensive or otherwise put practically beyond reach”

Like Wallace, she was powerful in joining the dots between this proposed legislation and what she described as a “wave of anti-rights legislation and rhetoric”. Certainly the arrest of perennial one man Brexit protest Steve Bray during this debate cast significant doubt on the sincerity of a government belief in freedom of speech. Pushing buttons that will give many Conservative peers paused for thought, she asked:

How can it be a protection of academic freedom to give more and more power over independent institutions of scholarship to the government’s Office for Students and the new director for freedom of speech?”

Especially given the real threats to academic freedom seen in precarious academic employment, lack of representation, and political interference in the running of autonomous universities – with Michelle Donelan’s recent veiled threats on the Advance HE Race Equality Charter very much a key example of that.

Weigh in

The government will be more concerned about equivocal (at best) support from members on its own benches. Former ministers like Lords Willetts and Johnson offered faint praise for what was on offer before laying into the bill’s many weaknesses – Johnson focusing on the government’s last minute amendments relating to foreign funding, and Willetts tackling fundamental issues such as how the bill will actually work, and what protection for “lawful free speech” actually means.

On the latter, Willetts drew on the painful example of the IHRA definition of antisemitism – reminding us that while “everything covered in that definition is clearly objectionable, offensive and wrong” not everything that would breach that definition is unlawful. And contradictions with the approach in the Online Safety bill were also on his mind, given that bill proposes to protect adults from (legal but) “harmful content” and “harmful communication” because they will cause “serious distress”:

It is perfectly possible for a university to be fined for breaching this legislation because it would not permit something to be said which an online tech giant would be fined for transmitting. This is a ludicrous position to have got into.

We hope your knees will knock

A couple of spectres haunted the debate that ought to give cause for concern. One was the repeated use of the Kathleen Stock anecdote as evidence of a problem on campus that requires legislation to fix, with all eight references to the affair in the debate apparently taking at face value the established narrative that Stock was hounded off campus by censorious students.

That’s interesting because it’s only thanks to the Lords that we learned in November that OfS had opened an investigation in October 2021 into whether or not the university had met its existing obligations for academic freedom and freedom of speech within the law for all students and staff, whatever their views. That the Lords have subsequently been so incurious about the progress of that investigation is a real problem.

It’s possible that the Stock affair was all as has been reported – she was unfairly harassed and drummed out, and the university failed in its existing 1986 Education Act duty and the HERA public interest governance principle to protect academic freedom and freedom of speech. But if that was the case, wouldn’t we know that by now? And why hasn’t OfS fined? Or issued a condition of registration?

Alternatively, the reporting was twisted. Students protested within the law. Much of the objection to Stock was on anonymous social media and came from outside of the university. Nothing Sussex students or other academics did reached the threshold of harassment and the university did all it could. If that’s what OfS has found, given its overuse in the evidence for the bill, don’t the Lords need to know?

You might even argue that it’s shocking that OfS has been silent on its Sussex investigation, and in the absence of transparency it may not be unfair to assume that its investigation is being suppressed so as not to embarrass either itself for inaction, or the government for repeatedly using the case as bill mill grist.

But the nature of the Sussex case raises another spectre. The other phrase mentioned eight times in the debate was “cancel culture” – Willetts said that universities are places which should offer protection from it, and Baroness Stroud explained how she thought the new free speech champion might go about their work in relation to it:

When a student or academic has been cancelled despite acting within the law, the free speech champion would be empowered to investigate and potentially fine or sanction the censoring bodies.

But given the (also over used) stats on no platforming, the notion of “censoring bodies” might be the ultimate example of intergenerational misunderstanding underpinning the bill.

If “cancel culture” is about anything, it’s not about regulated “bodies” that issue codes of practice or whatever – it’s about individuals, via social media, losing all faith in bodies to protect their rights and using direct (and often anonymous) communication to critique – the cumulative impact of which feels unfair to those it is targeted at, given it comes without due process.

But even if you view that new kind of accountability as wrong, the free speech bill won’t fix it. It’s an analogue bill in a digital age. Or as Chakrabarti put it:

You cannot cancel cancel culture, any more than you can realistically no-platform ideas you detest in the age of the internet. However, you can demonise the courts, the arts, the academy and even the young in a culture war of divide and rule. Some speech is free, it would seem, and some is rather more expensive – that is the real message behind this Orwellian Bill.”

Brace brace

In the summing up, Earl Howe attempted to address the myriad issues raised in the debate with the standard lines given to him – but the list was long, and many of the contradictions and contortions signalled a rough ride to come as the bill hits Grand Committee.

In reality, it is a testament to the roughshod way in which a bill this bad has gotten through the Commons that peers are asked to deal with such fundamental issues – many drew a parallel to the similarly terrible Schools Bill (as Baroness Garden reminded us “a Bill so bad that three Conservative Education Ministers have called for it to be terminated”). Many of the issues raised here had been raised at every stage of Commons debate – DfE really needs to learn how to listen to and take on these criticisms early on rather than inevitably climbing down as ping-pong approaches.

The Labour amendments from Report Stage will – according to Baroness Thornton – return in the Lords. The questions of the independence of the Director for Free Speech, academic freedom including union campaigns, the OfS’ regard to competing freedoms, banning non-disclosure agreements, and a sunset clause (if the whole mess, as expected, does more harm than good) will be discussed again – this time with Conservatives who have a regard for the health of the higher education sector and the niceties of legislative design.