The Johnson government does not respond well to questioning or scrutiny. Might parliament object to the Brexit deal? Prorogue it. Might the Electoral Commission question election or referendum spending? Force it comply with “guidance” issued by the government. Might judges allow legal challenges to controversial policies? Threaten US-style confirmation hearings. Might the universities challenge received government wisdom? Stir up a good culture war; then tie them up in red tape and the threat of nuisance challenges.
That last scenario appears to be the purpose of the Higher Education (Freedom of Speech) Bill, which receives its second reading in the House of Lords this week. It will certainly be its effect.
This Bill is part of the pattern of weakening institutions of accountability by imposing impossible burdens on them. True, the Bill sounds innocuous: free debate is what universities are for, so who could object? Well, nobody. Except that this is a response to a non-problem. Free speech in universities already gets fulsome legal protection, without these new administrative measures.
We don’t need more law in this field. The Human Rights Act, itself under threat, already requires universities to protect freedom of expression under Article 10 of the European Convention on Human Rights. Section 43 of the Education (No 2) Act 1986 requires them to “take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.” A recent review of 10,000 speaker events across universities found only six that had been cancelled—of which four were due to incorrect paperwork.
The Bill is about giving more power to the Office for Students, the university regulator, to enable it to enquire into what is discussed in supposedly independent institutions. And it is about allowing those who believe they have been deprived of a platform, but who have ample funds, to claim damages from universities and student unions, which increasingly do not.
This government makes much of not involving judges in political questions. But this Bill will encourage frivolous litigation by provocateurs and draw the courts onto difficult political terrain. Whereas Article 10 protects all speech worthy of protection in a democratic society, but not that which is intended to undermine democracy or which is deliberately untrue, this Bill expressly protects “controversial or unpopular opinions,” without limit. Those seeking a platform include those who want publicity by claiming to have been silenced.
So those who espouse fascism or antisemitism or oppose vaccines should be celebrating—all will have free rein to demand a platform, to sue if they think they are denied one, and to waste universities’ scarce time and resources by bringing frivolous and vexatious complaints and claims against them and their student unions. Unlike in the Defamation Act, there is no prior requirement for a would-be claimant to have exhausted internal complaints mechanisms, nor to show any significant loss. There is no guidance as to how much by way of damages would be appropriate.
This will not encourage a culture of free speech; rather it will encourage a litigation culture, one of suspicion and fear—the very last thing a university should be. Perhaps that is its point.
Then there are the provisions which appear to create a positive obligation to “platform” particular views, on pain of disciplinary sanction. The Bill introduces a new statutory duty to take reasonably practicable steps to discipline an employee or student who does not insist on allowing views which they do not accept to be expressed. The risk is that we create a society of informers. This provision has no precedent in any other legislation. It is not necessary here.
Universities have limited resources and many existing regulatory reporting requirements. They already have, and publish, free speech statements. The Bill will tie them up in unnecessary red tape, requiring them to produce complex, confusing and unnecessary codes of practice: the draft free speech complaints policy produced by the Office for Students contains four pages of detailed content, and expensive and excessive reporting obligations. Public funding for higher education is under increasing strain. How does depriving universities of resources help the cause of free speech or the education of our young people?
As with the Electoral Commission, there is now serious concern that the OfS is becoming politicised. Its chair, Lord Wharton, is a Conservative peer who was selected by a Tory-leaning panel (save for one civil servant). The Bill will introduce an Orwellian-sounding duty on universities to “monitor” whether student unions are complying with the provisions of the Bill, and the OfS can “impose a monetary penalty” on a students’ union if it does not. There is no restriction on the level of that penalty. It could be sufficient to close down these engines of student enquiry, questioning and complaint; or bring them meekly into line.
It is perhaps surprising that a government so dedicated to damping down controversial stories (on Russian interference in elections; on who gets to be chief of staff to a foreign secretary; on ethics in public life) should be devoting legislative time to putting a further bureaucratic and legal structure around universities’ existing commitments to protecting free speech. Except that there are many in universities today—including the chancellor of Oxford University and former Tory Party chairman Lord Patten—who are highly critical of the current government. They are appalled by the attacks, from the very top of the current administration, on accountability through respected institutions—universities, independent media outlets, the courts.
Let’s call this out for what it is. The Bill is not an attempt to free universities, but an attempt to muzzle and constrain them from courting controversy.
