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The Government’s change to its own Free Speech Bill is an opportunity for the sector to take charge of academic freedom – by Dean Machin

  • 13 June 2022
  • By Dean Machin

[Don’t miss yesterday’s WEEKEND READING on social mobility by Anna Mountford-Zimdars and Neil Harrison.]

Dean Machin is Head of Public Policy at the University of Portsmouth. He is a former philosopher who has advised David Willetts. In 2015, he wrote a report on data-sharing for the Social Mobility Commission. Dean is writing here in a personal capacity.

Contrary to the hopes of many in the sector, the Higher Education (Freedom of Speech) Bill has not gone away and today it reaches Report stage in the House of Commons. 

The Bill aims to bring widespread culture change to universities and has promised new provisions on academic freedom – which is central to universities’ commitment to free intellectual enquiry – so universities should not ignore it. 

On academic freedom the Bill had proposed new protections for academics to test received wisdom and put forward new ideas and controversial or unpopular opinions with their ‘fields of expertise’ (and within freedom determined by the law). 

The Government has now dropped the ‘field of expertise’ sub-clause (p. 9). Academic ‘staff at a registered higher education provider’ will now be entitled to question and test received wisdom and put forward new ideas and controversial or unpopular opinions in all areas including, presumably, areas in which they can claim no expertise at all. Why has the change occurred and does it matter?

I cannot claim to know what motivates this Government but there is one glaring worry about confining academic freedom to ‘fields of expertise’.  The Office for Students’ (OfS’s) soon-to-be established Director for Freedom of Speech and Academic Freedom will make academic freedom rulings. The OfS is increasingly close to the Department for Education, and is chaired by the Prime Minister’s campaign manager – who also takes the Conservative whip in the House of Lords. On controversial issues, would the OfS be immune from allowing political considerations to affect where it draws the line around an academic’s field of expertise?

Unfortunately, dropping the clause creates problems, too. Academic staff are not oracles. The substance of what they say or write does not command special protection just because they said or wrote it. In principle, academic freedom should be limited to academics’ fields of expertise (however defined). But there is more than the general principle at stake. 

Academics, universities and society more widely have a vital interest in academics’ views being treated with a certain kind of respect not afforded to politicians, journalists or commentators. Confining academic freedom to academics’ fields of expertise is a good way to secure this and maintain public confidence in academics. 

This point is not trivial. It is common to discount political commentary in proportion to its political leanings. It is absolutely vital – for universities and society – that academics’ work does not routinely encounter the same responses. But there are worries about political bias in universities. 

The Legatum Institute found that while ‘91% of right-wing academics think academic freedom should always be prioritised even if it violates social justice ideology only 45% of left-wing academics feel the same’ (p. 2) and Policy Exchange found political discrimination within academia is likely to lead to the ‘loss of expressed viewpoint diversity’ (p. 69).

In dropping the field of expertise qualifier, and extending academic freedom protections to anything academics say (within the law), the Government has reduced the Bill’s ability to address any political bias problem. Perhaps this is a good thing, but given that higher education is the Conservative Party’s ‘new Euroscepticism’ it is probably best to see this as a stay of execution. 

The sector should not miss this opportunity. How? Better self-policing. Given their corporate interests, neither individual universities nor sector bodies are apt for self-policing but learned societies could play a role. Whether academics’ outputs get academic freedom protections could be determined by the extent to which they are consistent with the methods of the relevant disciplines as judged by a collection of learned peers. 

Self-regulation is common in other sectors – for instance the General Medical Council regulates medics – but many learned societies would probably baulk at this. However, there is another reason for learned societies to consider self-policing. Academic freedom is not just about putting boundaries around academics’ expertise. As David Willetts noted in ‘Whitehall’s clumsy attempts at strengthening free speech on campus’, published in Prospect in May of this year, it is also about telling authorities when to butt out: 

I met an academic from the Middle East who had lost his job because he objected to Islamic teaching on creation appearing in a science course. Eventually, he got his job back when his university relented and agreed that such religious beliefs should be taught as part of theology and not science.

With an increasingly assertive Office for Students, this role is going to become very important. Under its quality condition B1.3 – which covers a high quality academic experience – the OfS plans to assess, for example, whether course subject matter and pedagogy is (i) representative of current thinking and practices, (ii) whether course content is too narrow, or too broad, and (iii) whether things are taught in the right order at the right time. 

The OfS will ‘draw on expert academic judgement’ (p. 4) here so the extent to which this could threaten academic freedom is unclear but one might reasonably worry whether the OfS will reliably respect the correct boundaries between quality and academic freedom. 

Have I over-excitedly misdiagnosed a problem and should the dispassionate response be to quietly take the win that the Government dropping its own sub-clause might be? Possibly. The key issues are these: firstly, whether the Government’s change to the Free Speech Bill gives universities and academics permanent respite over academic freedom or just some time to put our house in order; and secondly, whether worries about OfS quality regulation are well-founded or not. 

I cannot know the answers here but I do know that a strategy based on hope is flawed. There is a window of opportunity for the sector to get our house in order. Learned societies, in particular, have a key role to play in academic self-policing both to maintain public confidence in academic rigour and push back against regulatory overreach. Will we – and will they – take it?

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