Ever since universities minister Michelle Donelan appeared to back the right of David Irving to speak on campus – on the basis that the government’s free speech bill protects freedom of speech “within the law” – there have been questions to answer about where we should draw the line when it comes to conduct on campus if we are retain “competing duties” for both universities and their students’ unions.
The idea that “content” or types of “expression” can be “legal but harmful” – either because of the content itself or the way it’s distributed or expressed – isn’t new. The 2003 Communications Act, for example, placed a duty on Ofcom to set standards for the content of programmes “so as to provide adequate protection for members of the public from… offensive and harmful material”. We’ve taken a look at a particular case involving Catholicism on campus and the way in which views can be expressed over on Wonk Corner.
One way in which you might draw that line is over harassment – the government swiftly moved to disavow the Donelan position on Irving, for example, on the basis that Holocaust denial on campus would represent a breach of the Equality Act 2010 and would in and of itself constitute harassment. But now Policy Exchange is floating a critique and revisions to the Equality Act that a government source says it is studying “closely”, adding that “it is likely that its analysis and recommendations will inform further policy development in this important area, including any future review of the equality act”.
Confused? You could be.
Campus cancel culture
At Universities UK conference, Secretary of State Gavin Williamson summed up the government’s position on free speech as follows:
Yet too often, some universities seem more interested in pursuing a divisive agenda involving cancelling national heroes, debating about statues, anonymous reporting schemes for so-called micro-aggressions and politicising their curricula. Vice-chancellors who allow these initiatives to take place in their name must understand that they do nothing but undermine public confidence, widen divisions, and damage the sector.
I call on you to help bring our nation together, instead of driving our nation apart. Rather than manufacturing offences from the past, let us instead come together to tackle injustice and promote equality for the students and staff on today.
Now if you’re looking at those two paragraphs and asking “what do they have to do with freedom of speech?” the point is that it is a particular version of freedom of speech that is on offer in the Freedom of Speech (Higher Education) Bill – one that is pretty focussed on protecting the rights of people who, in exercising their freedom, some argue have harassed others, but others argue have merely caused offence.
A new survey from Hope not Hate suggests that nearly half of the public would not support plans to allow people to be able to sue universities for “no platforming” if it meant extremists and Holocaust deniers were allowed to speak on campuses. But a Department for Education (DfE) spokesperson says that it is “categorically untrue” to suggest that the Bill will introduce new rights or protections for individuals who seek to harass others or spread extremist views, with the spokesperson adding that “It is important to distinguish between lawful views and unacceptable acts of abuse, intimidation and violence.”
This bill will protect and promote lawful free speech. Universities will still need to adhere to the Equality Act, the Prevent Duty and ensure that speakers do not incite violence, harassment or hate crimes.
— Michelle Donelan MP (@michelledonelan) May 12, 2021
One omission from the “David Irving thought experiment” continues to be that while the government is confident that a speech about Holocaust denial could be blocked by the Equality Act, Irving himself could be free to speak on other matters – which sounds fine until you remember that the ultra-libertarian free speech zealots baulk even at the idea of events being risk-assessed, let alone the content of contributions vetted in advance.
But the general point being grasped at by ministers is that if free speech on campus still constitutes harassment, then it can (and should) still be restricted. So what if the Tufton street campaign group that inspired your bill then go on to argue that the definition of harassment in the Equality Act itself needs to change?
Who’s oppressed on campus?
As “no platforming” expert Evan Smith argues here, Policy Exchange has been a major player in transforming the “free speech at universities” issue from the concern of the opinion pages into government policy. Its new report – The Future of Equality: Why it is time to review the Equality Act 2010 has a particular focus on universities and incidents within their ambit, and through a series of incidents / case studies argues that the act’s “true intentions” have been “subverted” by those who advance a “rather narrow” view of the opinions which merit protection under the act.
For example, early on the report argues that there is “increasing evidence” that universities and students’ unions feel that that debate on certain topics should be excluded and speakers or groups barred from stating their views in order to “protect others from being offended or feeling alienated.” One of its case studies to justify this assertion is from Ireland, and the other is from Balliol College Oxford’s Junior Common Room – a students’ union as per the Education Act 1994, although for some reason it’s one that the government is now proposing to exempt from its new legislation.
The story goes that in 2017, the Balliol Junior Common Room banned the collegiate Christian Union from having a booth at its freshers’ fair. Apparently the Christian Union representative was told by the JCR vice president:
We … are concerned that there is potential for harm to freshers who are already struggling to feel welcome in Oxford. … Our sole concern is that the presence of the CU alone may alienate incoming students. This sort of alienation or micro-aggression is regularly dismissed as not important enough to report, especially when there is little to no indication that other students or committee members may empathise, and inevitably leads to further harm of the already most vulnerable and marginalised groups.
The report argues that the concern that the CU might make unspecified individuals feel alienated or suffer micro-aggressions does not appear to have been considered alongside any concern that the officers and members of the CU, or other Christians sympathetic to the CU, might feel marginalised – and so it argues that a principle of “reasonable accommodation” should be built into the act that calls on authorities to be aware of potential conflicts, and avoid privileging one group over another.
Policy Exchange doesn’t seem to have noticed that students’ unions aren’t subject to the Public Sector Equality Duty (if they were then maybe more disabled students might get the funding to take part in clubs and societies) and neither does it mention that following legal advice, Balliol College JCR changed its mind. At the time, a spokeswoman from the Universities and Colleges Christian Fellowship said: “Balliol College JCR committee took the decision to prevent Christian Union representatives from attending its freshers’ fair on the grounds that they wished the fair to be a safe and secular space.” She said it was “a pretty rare experience” and added: “Most students’ unions are fair-minded and enjoy a good relationship with the CU in their university.”
All in the mix
That a half-told anecdote is used to suggest evidence of a need for legislative change isn’t really the point, though. The interesting bit is the proposals – which include the idea that the act should be amended to include the idea that to promote diversity includes to promote diversity of political opinion, and to “stress the need” for tolerance of differing political, philosophical, and religious opinions – especially in educational institutions. It also says that the Equality Act should be amended to adopt as part of the PSED a principle of “reasonable accommodation” that aims to promote mutual cooperation among individuals with differing opinions and beliefs.
Smith argues that the concept of “diversity of political opinion” is using the language of progressive politics to carve out a “safe space” for right-wing ideas, and shifting the Overton window to the right of the kind of views that are deemed “acceptable”.
It also argues that the Act should be amended so that the issue of whether conduct amounts to prohibited harassment is judged by a standard of “objective reasonableness”, where both the perception of those subject to harassment and the “intention” of those alleged to have carried it out has to be taken into account – opening the door for all sorts of “legal but harmful” speech and expression to be justified on the basis that they didn’t mean to harass anyone, they just “wanted a debate”.
It also proposes that the prohibition on harassment in the Equality Act should be amended to clarify the relationship between the Act and legal protection of freedom of speech, in order to ensure that the right to free speech (in universities and elsewhere) is not defeated by claims that speech will cause offence or discomfort.
As such it specifically recommends that a new section applicable to higher education providers should clarify the relationship between harassment and freedom of expression, and should specify that universities must have particular regard to the duty to ensure freedom of speech, and must have particular regard to the importance of academic freedom. Oddly, it isn’t suggesting that the Free Speech Bill should contain a similar clause reminding providers (and the new OfS Czar) of duties to protect students from harm or protect their right to protest. Funny that.
The real debate
What’s helpful about the Policy Exchange report is that it gets to the nub of the issue – the tension between EDI issues (grounded in the Equality Act 2010) and freedom of speech and academic freedom. Part of the problem, of course, it that it sets these out as opposites – when many would argue that it is the protections in the Equality Act that allow for marginalised groups with protected characteristics to enjoy freedom of speech and academic freedom in the first place. It also largely avoids the important distinction between beliefs and opinions on the one hand, and conduct and behaviour on the other.
But even if we accept the tug-of-war tension suggestion, three things become clear. The first is that the debate over the Equality Act, case law emanating from it and any unintended consequences is a live one – and one that arguably needs resolving first before government spokespeople simplistically wield it to shut down concerns over harassment and equality in the Freedom of Speech (Higher Education) Bill.
The second is that if the debate over the current Bill is really about EDI, it’s being hosted in the wrong department and is being supported by the wrong team of ministers and officials – all of whom look pretty out of their depth when it comes to the complexities of Equality Law right now.
But it also demonstrates a clear awareness that the principles of freedom to speak and freedom from harm can be difficult to integrate – and so proposes that the former is taken into account when striving for the latter. The draft Online Safety Bill does that too, as we’ve outlined here. As such doesn’t it seem odd that the government is proposing a Bill specifically for higher education that tries to cleave off “freedom of speech” from “freedom from harm” rather than including clauses that would sensibly (and more clearly) integrate the two?