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.
By the time the Free Speech Bill returns to the House of Lords, there is likely to be a new Prime Minister. But it would be naïve to think a change of Prime Minister could lead to the Bill’s demise.
At best, a change will lead to pragmatic solutions to the many gaps in the Bill, the most important of which is the purpose of the Director of Free Speech and Academic Freedom. Will he or she champion free speech or censor it? Will the Director protect all lawful free speech, as Michelle Donelan once said on the Today programme? Or will some lawful speech be prohibited?
Donelan was slapped down by No.10 for her Today programme comments. Holocaust denial is not unlawful speech but, for obvious reasons, the Government does not want its Bill to be known as the Holocaust Denier Enabler Bill.
In a response to Labour MP Lilian Greenwood, the then Secretary of State for Education, Gavin Williamson, told the House of Commons a year ago that Holocaust denial would not be protected:
As the hon. Lady will know, it is absolutely clear that this Bill will never create a platform for holocaust deniers. She is probably familiar with the Public Order Act 1986, the Equality Act 2010, which was introduced by the Labour party, and the Prevent duties introduced in 2015. If made an Act, this legislation will never create the space to tolerate holocaust deniers.
To this, Earl Howe recently added:
The European Court of Human Rights has held that Holocaust denial is not protected speech under Article 10 of the European Convention on Human Rights, and our legislation does not change that. For the avoidance of any doubt, this legislation will not protect those who deny the Holocaust.
The thrust is that existing legislation already rules Holocaust denial unacceptable and the Free Speech Bill will not change this. Possibly, but one senses a crossing of fingers. One can never know how different legislation will be interpreted in different cases, and as Holocaust denial is not in itself unlawful, the reasonable conclusion is that sometimes Holocaust denial will be protected, on other occasions it will not. While this might not be what Ministers intend, the fundamental issue is broader.
Few people would worry if the Director of Free Speech protected all lawful speech minus only Holocaust denial. But will there be other exceptions? What will they be? How will it be determined that, although lawful, some speech is unworthy of protection and so can be censored? As Lord Willetts said in the House of Lords last month:
We are passing legislation that will enable a regulator [to decide] not to protect free speech which, nevertheless, in its most absolute form, would be allowed. No wonder there is considerable anxiety in this House about that power.
There is nothing in the Free Speech Bill to guide us one way or another. Might a letter from the Common Sense Group inform the Director of Free Speech’s rulings? Fanciful perhaps but there are reasons to worry about political interference. The Office for Students (OfS) is chaired by a political appointee who takes the Conservative whip in the House of Lords and one essential criterion for any candidate for the Director of Free Speech role is the ‘ability to manage and bring about sector-wide change in light of new or developing Ministerial policies and priorities’.
Ignoring individuals, and how the Office for Students might (or might not) operate, the issue is this: will the Director’s ruling be made on substance or procedure? Will it be, ‘you failed to protect this climate-denier’s lawful free speech’ or, ‘how you decided to refuse this climate-denier a forum was faulty’? Will it be a combination of both? Will the Director of Free Speech have a list of substantive issues divided into: (i) the always protected; (ii) the protected, depending on context; and (iii) the never protected. The Bill is no guide.
The Government intends this to be addressed in post-legislation guidance. This could work but it is far easier for future governments to change guidance and secondary legislation than primary legislation. One should not give future governments of any colour such freedom. Imagine two different governments: ‘Woke Central’ and ‘Backwoodsmen’. What in the Bill would stop each from changing the guidance to the Director of Free Speech to suit their political agendas? Nothing. This is not a stable or suitable basis on which to regulate our university sector whose independence from government is one reason for its world-class status.
I have no reason to doubt the Government’s genuine intention to protect free speech and academic freedom on university campuses. However, with the current gaps, the Higher Education (Freedom of Speech) Bill risks becoming the enabling legislation for a state censor of campus speech. No one who wants our universities to be bastions of free speech and intellectual challenge can really want this. So let’s hope the next Prime Minister permits sensible amendments that will prevent it from ever happening.