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Phoenix from the flames? Free speech and academic freedom legislation lives to fight another day

  • 27 April 2022
  • By Nick Hillman

I popped to Westminster yesterday for my first in-person event at Policy Exchange since the launch of the Augar report back in 2019, back in pre-COVID days. This time, it was for a relaunch of the Westminster Government’s legislation on free speech and academic freedom in England. It took the form of a speech from the Minister for Higher and Further Education, the Rt Hon. Michelle Donelan MP.

we heard how the Bill will resemble a phoenix, arising from the ashes of the previous parliamentary session

Unusually, her Bill in question is being carried over from one parliamentary session to another. Many people had thought it would die rather than be relaunched but, as was confirmed by yesterday’s speech, this was always unlikely: it is just too important to the Minister’s specific priorities and overall outlook. In short, we heard how the Bill will resemble a phoenix, arising from the ashes of the previous parliamentary session.

Whatever you think of the legislation, the Minister’s renewed push makes sense in political terms because the most impactful Ministers tend to be those who leave a big mark behind in a small number of areas and half the work has already been completed. As much of the free speech legislation currently affecting universities dates back to the 1980s, it is at least conceivable that Michelle Donelan’s new terms of play could last for decades to come.

In the speech, there was a defence of the rationale for new legislation, a run through of the new arrangements and some criticisms of recent events. Episodes like those experienced by Kathleen Stock and the Israeli ambassador got brief mentions, as did trigger warnings on Harry Potter and 1984, and a shot was fired across the bows of vice-chancellors. (I only spotted one vice-chancellor in the room but the majority of the audience was online so there may have been more listening in.)

HEPI has published a huge amount on free speech issues in the past, including: a report for a parliamentary committee on universities’ free speech policies; a polemical defence of free speech on campus; and research on attitudes among the public towards higher education, conducted with the UPP Foundation and Public First. We’ve also run various blogs, including recently a review of Andrew Doyle’s book Free Speech, a piece asking who might be England’s new free speech champion and an entry by Arif Ahmed responding to the Government’s proposals. We hope to add more to this output in the future.

Altogether, this has led me to the conclusion that there are some genuine (and genuinely difficult) issues that need addressing, even if they are quite often overcooked. At the margins, there have been fraught cases of no-platforming (as with, for example, David Willetts in Cambridge), students saying they feel unsafe due to the activities of specific staff members (as at Bristol) and staff who have said things deemed controversial but who have not broken the law feeling they can no longer continue in their job, and who have been blocked from doing so by others who feel their own rights have been trampled upon (as at Sussex).

None of these issues is simple and all have been tackled in a fashion. For example, in the Willetts case a harsh punishment was handed out (but then reduced) and, in the Bristol case, the member of staff was sacked. Overall, however, it sometimes feels like there are only losers: take the Willetts case, he didn’t get to deliver his speech and his main attacker was ‘rusticated’. (Ironically, rather than shutting down debate, the episode ensured both sides got publicity.)

Back in the mainstream, there is some evidence of self-censorship (in the UK and abroad). While we probably all self-censor every day when we wish not to offend someone, it is arguably more out of place as a regular norm on university campuses. A tendency towards monoculture may also conceivably explain the sometimes worrying gap between higher education and the society at large of which it is a part, as well as impacting on the quality of some academic research.

The contents of the Minister’s speech yesterday were controversial to many – just look at the response to our Twitter thread summarising her remarks. Some say she’s completely wrong and that Government policies (as shown by other bits of restrictive legislation and practice) are flatly contradictory. Others say new legislation is simply unnecessary, given existing powers. Still more welcome the proposed changes (including a notable number of the questioners in the room yesterday).

thankfully, most of life occurs in the gap between what is illegal and what is compulsory … Legislation alone is unlikely to change campus culture

My response, given that the draft legislation is almost certain to become law (perhaps in an amended form), is to try and think further ahead. The Bill is built on negatives, as legislation necessarily tends to be. It looks at what should happen when things go wrong and what redress there should be for those affected. But, thankfully, most of life occurs in the gap between what is illegal and what is compulsory. If we want this big space to be the home of vibrant debate, what more could be done to help encourage it? Legislation alone is unlikely to change campus culture, assuming that is the aim.

So once the Bill has finished its tortuous journey through both Houses of Parliament, what further action or guidance should govern what happens? Judging by a number of the questions after the Minister’s speech, I’m not the only person interested in the answer.

For me, one fact stands out: HEPI’s (admittedly pretty ancient) polling of students showed they are above all confused when it comes to free speech questions. They have a tendency to be liberal in theory but illiberal on the details. When we polled them, 60% of students said they thought universities should never limit free speech but three-quarters (76%) were in favour of No-Platforming, two-thirds (68%) backed trigger warnings and half (48%) said universities should be safe spaces where debate takes place within specific guidelines.

we all support free speech until we don’t

If we want this odd position to change, and not everyone will (after all, we all support free speech until we don’t), then what non-legislative changes would help?

  1. Should Ministers encourage the foundation and running of free speech societies? Some might fear this would be a gift to provocateurs but it wouldn’t be unprecedented for Ministers to promote particular sorts of student societies (for example, there has in the past been public support support for enterprise societies).
  2. Given the gradual shift over time that means a much bigger proportion of today’s undergraduates are young full-time school leavers than in the past, should basic information on free speech and its complexities be more clearly incorporated into student induction?
  3. More controversially, given that current criticisms sometimes dwell upon curricula and pedagogy, are there specific classroom behaviours that Ministers and regulators would like to see more of, or less of, even if the price is a clear encroachment on autonomy?

For the avoidance of doubt, I’m not recommending the first and definitely not the third of these ideas, though I do think the second makes some sense. But they all serve as a reminder that revamped academic freedom / free speech legislation won’t be the final word and it’s not too early to ask what will come next.

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