The Free Speech Bill would have had no impact on the Stock case

On 28 October Michelle Donelan claimed that the resignation of Kathleen Stock “only reinforces the need for our Free Speech Bill” and proceeded to make party political points castigating the opposition for being insufficiently supportive of the Bill.

She was incorrect. Nothing in the Freedom of Speech Bill as it currently stands (awaiting Report in the House of Commons, as amended in Committee) would apply to what happened at Sussex – had the Bill been an Act events would have played out in exactly the same way.

I’m looking here just at the proposed legislation and how it would apply in this particular case. It is important that legislation should apply equally in cases we personally dislike as well as those that appeal to us. If any breach of the duties set out in the bill has happened, the remedies in the bill should be enforced. That’s how Acts of Parliament are meant to work.

Provider provisions

The first part of the Bill requires that providers (and constituent institutions) establish a code of practice on free speech, and take steps where reasonably practicable to secure freedom of speech within the law for staff, members, students, and visiting speakers.

The University of Sussex has a freedom of speech code of practice, last updated in September 2021. Though until detailed guidance is published we can’t know for sure, it appears as if this would comply with the requirements of the Bill – it certainly complies with the 1986 rules. As with both pieces of legislation it is primarily concerned with events – it does, for example, give the university cover to refuse permission for an event “where there is evidence that a speaker is likely to… discriminate against or harass any person or group on the grounds of… gender reassignment”.

Interestingly, the university made a statement on 21 October that advanced its position – suggesting that gender-critical views are a protected philosophical belief (as per, I assume, the Forstater case), while maintaining that gender reassignment is a protected characteristic (and thus that prohibitions of discrimination and harassment apply).

We also got a blanket statement about supporting and encouraging free speech:

The University values diversity and is committed to the principles of academic freedom and freedom of speech and expression. In support of these values, an atmosphere of tolerance, where personal and academic growth take place is fundamental to enable open discussion and to debate a wide variety of ideas, some of which may be controversial.

Under the terms of the Bill, providers must ensure academic staff can – within the law and their field of expertise – question received wisdom, and put forward controversial and unpopular opinions without losing their job or privileges or their likelihood of promotion (or similar) reduced.

Decisions to leave

Based on her own comments on Twitter, and those of Vice Chancellor Adam Tickell, it appears that Stock’s resignation was her own decision. The university, in other words, did not cause her to lose her job or privileges. Though Tickell suggests that Stock did not have the chance to “work and learn free from bullying and harassment”, it is clear that the university itself did not carry out this bullying and harassment, nor (based on the published information) was it in a position to take action under its disciplinary or other processes against any individual for bullying or harassing Stock. In his statement Tickell also reaffirms the university commitment to free speech.

And, though there have been student protests involving flags and posters, most protests concerning Stock appear to have come from external sources – largely on social media. Tickell has reported that an investigation into a recent student protest is ongoing. Some students were clearly exercised about Stock’s views, and appear to have used their legitimate right to protest peacefully. Though it is unpleasant for the person involved, it is not necessarily harassment to call for someone to be sacked – alas it is the common currency of online discourse.

If it is, indeed, harassment in this particular circumstance (and harassment is not well defined in law) – it is not harassment that the University of Sussex or Sussex SU could reasonably control. A tort already exists (in the Protection from Harassment Act 1997) which could apply here should a particular individual or group of individuals be deemed to be harassing Stock. Nothing in the new Bill would change this.

Kathleen Stock did not lose her job because of her views, and at no stage was she prevented by her employer from questioning received wisdom and putting forward controversial and unpopular opinions. Stock has published widely on related topics. She chose to leave Sussex, despite the efforts (as per Tickell) to support her in returning to work – not because of them. Should it be suggested that some action or inaction of the university made this constructive dismissal a number of processes already exist to address this. Nothing in the new Bill would change this.

The SU

For their part, the SU has issued a statement of solidarity with the trans and non-binary student community which does not mention Stock or her views but does call on the university to offer better support for trans and non-binary students. The Sussex branch of UCU called on the university to heed institutional values and commitments as set out in the dignity and respect policy and trans equality statement – noting (as UCU nationally has done) that there “should be no contradiction between academic freedom and supporting trans rights”. The branch was also clear that it did not endorse the call for any worker to be summarily sacked, and opposed all forms of bullying and intimidation.

The Equalities Act 2010 could be relied on should it emerge that Stock had specifically discriminated against or harassed anyone on grounds of gender reassignment – however with “gender critical” views currently (as above) a protected belief under the same act the bar would be high and the case complex. Stock has always maintained that she has not directly discriminated against transgender staff or students. Nothing in the bill would change the ability of staff or students who have been discriminated against to use any of the torts within the 2010 act – and nothing would change the burden of proof they faced.

Regulatory responses

Lord Wharton, Chair of the Office for Students and government member of the House of Lords, did not comment directly on the specific issue at Sussex, but did assert in the Telegraph that OfS was in favour of the widest possible definition of free speech within the law.

Universities minister Michelle Donelan was less circumspect. As above a Twitter thread on 28 October described Stock’s decision to leave her role as a “sad day for freedom of speech” and called on other universities to offer Stock a “suitable position” (an exhortation that is recognised as generally inappropriate for a Secretary of State under section two, paragraph 8, subparagraph (b)(iii) of the Higher Education and Research Act 2017). In the House of Commons, she was “horrified”.

The new tort in section 4 of the bill would not apply in this case if there has been no provable breach of duties in sections 1-3 by either the provider or the SU. Nothing that I have read suggests that there is enough evidence to establish a breach; if this impression is correct there is literally nobody to take action against using this tort.

OfS powerless?

The remainder of the Bill details the role of the Office for Students in promoting free speech and ensuring that the promotion and protection of free speech is a condition of registration for providers. Based on their published comments Sussex can fairly be said to have promoted and protected free speech within the law (on both sides of this issue) as far as is practical. The Office for Students also gets to regulate SUs on this aspect of policy – but there is likewise no indication Sussex SU would have breached any of the requirements of the Bill.

The Director of Free Speech and Academic Freedom exists primarily to administer a complaints system. The system is provided only where duties above have been breached (again, it is not clear that they would have been a breach), and where internal complaints mechanisms have been completed (this does not appear to have not happened).

What to do with a bill that doesn’t work

This isn’t a technical problem that is hidden in a subparagraph in Schedule 12. The failings of the bill are readily apparent to a casual reader. Even James Tooley pointed out some of these issues in the Telegraph on Sunday, though his proposed solution of piling another clause that won’t work (if someone has genuinely left a job due to a lack of support or care from an employer then that is called constructive dismissal and already exists) on top of all the other clauses that don’t work does not convince me at all.

There are many respectable ideological reasons to dislike the Free Speech Bill – as a defender of free speech Donelan presumably would defend in a Voltarian fashion our right to hold and express them. But here the real issues are practical – the Minister either does not understand the measures within her own bill, or has deliberately misrepresented the content of her bill in the press and social media.

I’d go as far as to suggest that such a failure to carry out her duty – and not any views she may or may not hold on this or any other issue – is legitimate grounds for her to lose her ministerial role.