Education, Free Speech, Politics, Top Stories

Britain’s Academic Free Speech Bill

The British Education Secretary, Gavin Williamson, recently set out proposals to strengthen free speech and academic freedom at universities in England. These include: appointing an Academic Freedom Champion with a remit to champion free speech and investigate alleged breaches thereof; stipulating that universities will have to “actively promote” freedom of speech on campus; and introducing a tort that will allow individuals to seek redress for breaches of their rights to free speech and academic freedom.

The announcement sparked a lively debate in the British press and on social media, with some commentators welcoming the proposed changes, and others arguing that they are unnecessary and/or actively harmful. As I see it, this debate can be broken down into two key questions. Are free speech and academic freedom under threat at English universities? And if so, are the new proposals worth supporting? In this essay, I will argue that the answer to the first question is an unequivocal “yes,” and the answer to the second question is a qualified “yes.”

Before proceeding: what is meant by “free speech” and “academic freedom”? As the Education Secretary’s paper noted (see p.10) these two concepts are related but not identical. Freedom of speech concerns the right of students, academics, and visiting speakers to express their views free from censorship, and to criticise or protest views which they find objectionable. (Of course, the right to free speech is not absolute, as in cases of perjury, harassment, and incitement to violence. And one group’s right to protest may conflict with another group’s right to openly exchange ideas.) Academic freedom, on the other hand, concerns the rights of scholars to put forward controversial ideas and question received wisdom without fear of losing their jobs or other privileges.

Let us now consider the first of the two questions stated above. Are free speech and academic freedom under threat at English universities? While various scholars have attested to the problems they’ve faced expressing their views on campus, there remains a contingent of observers who insist that the free speech crisis is wholly manufactured—in other words a “myth” (or if it’s not a myth, then it only affects people with whom said observers are ideologically aligned.) On the contrary, I would argue, the free speech crisis is no “myth.” But it is slightly more complex than is sometimes suggested in the media.

As I have argued previously, there are several distinct threats to free speech on campus, and these may need to be dealt with in different ways. Briefly, they are: speech codes; no-platforming of external speakers; interference by external actors; government policies; and hostile environment for dissidents.

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Speech codes are official rules that pre-empt what members of the university can and can’t say; they may be laid down by students’ unions or by the university administration itself. From 2015 to 2018, the libertarian magazine Spiked tracked the prevalence of such codes via its annual Free Speech University Rankings. In 2018, they found that “over 50 per cent of universities and students’ unions placed explicit restrictions on speech.” More recently, the thinktank Civitas carried out a study of its own, finding that 98 universities “have taken steps to introduce a documented policy on free speech,” and that 45 universities “had policies which placed 10 or more levels of restrictions on free speech.”

No-platforming of external speakers refers to pre-emptive policies (e.g. the No Platform policy) or targeted actions (e.g. protests) that prevent “controversial” speakers from giving talks on campus. The scale of this phenomenon is sometimes exaggerated, and this in turn has led sceptics to claim that instances of no-platforming are vanishingly rare. In 2018, two BBC journalists surveyed 120 universities and found that since 2010 there had been only “six occasions on which universities cancelled speakers as a result of complaints.” In February 2019, Spiked came up with a slightly higher figure; the journalist Tom Slater noting, “By our count, just over a dozen events have been banned over the past three or four years.” And as Slater added, this figure doesn’t capture the speakers who were never invited in the first place.

What’s more, no-platforming may have become more common in the last few years. The Telegraph identified 21 cases where speakers were “banned outright or pressured into withdrawing from events in the last six years”—and that was at Russell Group institutions alone. The organisation Academics for Academic Freedom maintains a list of academics and external speakers who have been sanctioned or in some way targeted on account of their speech. However, it should be noted that their list includes unsuccessful attempts at no-platforming as well as successful ones, and also includes various historical figures (e.g. David Hume) whom activists have sought to retroactively defenestrate.

Interference by external actors comprises any attempt by those outside the academy to encroach upon the free speech rights of university members. The most obvious example in the UK (not to mention the US and Australia) is interference by the government of China. In November 2019, the House of Commons’ Foreign Affairs Committee uncovered “alarming evidence about the extent of Chinese influence on the campuses of UK universities.” For example, managers at the University of Nottingham reportedly pressured academics to cancel events relating to Tibet and Taiwan “after complaints from Chinese officials.”

Government policies in this context are ones that have of the effect stifling free speech on campus—even if that was not their intended purpose. The most salient example in the UK is the Prevent duty. This is a legal obligation under the Counter-Terrorism and Security Act, which requires universities to “have due regard to the need to prevent people from being drawn into terrorism.” The Prevent duty has been heavily criticised, and while some argue that such criticism is overblown, the duty arguably has curtailed free speech and academic freedom at British universities.

In addition to anecdotal reports of self-censorship, there are specific cases of students being targeted and events being cancelled because they were deemed to have flouted their universities’ Prevent policies. According to the Office for Students (the body responsible for regulating higher education in England) there were around 62,000 event requests in 2017–18, of which more than 2,000 were affected by Prevent. Most of these were approved with conditions attached, such as “having senior staff present.” Yet 53 requests were rejected altogether.

Of the various threats that I mentioned above, hostile environment for dissidents is arguably the most significant. By this, I mean all the habits and practices that discourage individuals from expressing their views or pursuing their research, and which therefore serve to stymie academic debate on campus. Such habits and practices comprise things done by university members to one another (e.g. open letters), as well as measures taken by universities themselves (e.g. internal investigations).

Recent years have witnessed many instances of cancel culture, whereby students and/or academics get together to denounce a particular individual, or to pressure the university to impose sanctions, because they object—usually on moral or political grounds—to the individual’s beliefs. Between 2017 and 2020, 55 percent of UK universities saw at least one open letter or petition that called for “the restriction of views of staff, students or visiting speakers,” according to an analysis by Civitas. The targets of such campaigns are disproportionately (though not exclusively) conservatives and gender-critical feminists—individuals whose beliefs conflict with the sacred values that now predominate in academia. Some examples, aside from myself, include John Finnis, Nigel Biggar, Gregory Clark, Kathleen Stock, Selina Todd and Michele Moore.

In a report for Policy Exchange last year, Remi Adekoya, Eric Kaufmann, and Thomas Simpson reported that current or retired academics who identify as “right-wing” are much more likely than their left-leaning counterparts to perceive a “hostile climate” in their department. Although this result was based on a relatively small number of right-wing academics, it has since been replicated in other samples (see p.109). As to gender-critical feminists, a website was recently set up for students and academics with such views to submit anonymous testimonials of their experiences. After only three weeks, there were already 120 submissions. They include reports of threats, bullying, intimidation, compelled speech, and cancellation of events.

When an individual is targeted by those who take issue with his or her speech, the detractors’ objective is often to have the university impose some kind of sanctions—if not to get the target fired, then at least to have him or her investigated. And in such cases, “the process is the punishment,” as one anonymous professor noted. I’m not aware of any systematic data on individuals who’ve been investigated for expressing unorthodox views at UK universities, but I am informed that the Free Speech Union has received over 100 requests for help from students and academics since it was founded just one year ago.

After being accused of “transphobia,” one PhD student at the University of Huddersfield was dragged through a “long, mishandled, disciplinary process in which I was required to account for thousands of my legitimately expressed written words.” Although the complaints against him were eventually dismissed, the whole process took 20 months. An anonymous academic has likewise recounted that, after being accused of “transphobia and racism,” he or she was subjected to a 10-month investigation. Although none of the charges were upheld, it proved to be “a deeply upsetting and traumatic experience.” I am aware of several other academics who’ve been through similar ordeals.

The hostile environment for dissidents that prevails at many UK universities has undoubtedly had a chilling effect on free speech. In a report for Policy Exchange in 2019, Thomas Simpson and Eric Kaufmann asked students whether people against (Remain) and in favour of (Leave) the UK leaving the European Union would be comfortable expressing their views in class. More than 80 percent said that Remain supporters would feel comfortable, whereas less than 50 percent said Leave supporters would be—and this was true among both Leave and Remain supporting respondents. The same pattern of results has been found for academics (in several different samples, see p.118).

In a report by Jonathan Grant and colleagues for The Policy Institute at King’s College London, almost 40 percent of students said that those with conservative views are reluctant to express them at university, whereas less than 20 percent said the same about those with left-wing views. What’s more, nearly 50 percent agreed that the “climate in my university prevents some people from saying things they believe because others might find them offensive,” compared to less than 40 percent who disagreed. Likewise, a poll by ADF International found that 27 percent of students have hidden their views about important issues. In the same poll, 40 percent agreed that the cancellation of events due to views held by the speakers “has become more frequent at my university,” whereas only 24 percent disagreed. And 44 percent agreed that their lecturers would treat them differently if they expressed their views about important issues, compared to just 31 percent who disagreed.

Compelling evidence as to the imperilled state of academic freedom in the UK comes from a study by Terence Karran and Lucy Mallinson, which they carried out for the University and College Union (the main union representing UK academics and support staff). The authors began by comparing the legal protections for academic freedom in the UK and other EU countries. They proceeded to analyse two large surveys: one based on a sample of ~2,000 UCU members; the other based on ~4,000 staff at European universities. Among the many interesting findings in their study is that 35.5 percent of UCU members have refrained from discussing, teaching, or researching a particular topic for fear of negative repercussions. As Karran and Mallinson note, “Self-censorship at this level appears to make a mockery of any pretence by universities of being paragons of free speech.”

In terms of legal protections, the authors’ findings were particularly stark. They note, “In sharp contrast with the other 27 EU nations, the constitutional protection for academic freedom… in the UK is negligible, as is the legislative protection.” In order to comprehensively assess the degree of protection in different EU countries, the authors devised a weighted score based on constitutional, legislative, and other safeguards. They found that the UK had the second lowest rating (see p.28). In the authors’ own words, their comparison shows the UK to be “among the worst nations in Europe with respect to the de jure protection for academic freedom.”

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Let us now turn to the second of the two questions with which I began this essay: are the new proposals worth supporting? Although there are in fact seven proposals in total, I shall focus mainly on the first, that is, to appoint an Academic Freedom Champion with a remit to champion free speech and investigate alleged breaches thereof. Overall, I believe this proposal is worth backing, though I would not give it an unqualified endorsement. The proposal’s advantages are obvious: it would provide free speech and academic freedom with broad institutional support, thereby discouraging institutions from ceding to calls for sanctions, and empowering whistle-blowers to speak up. But it’s worth considering the potential downsides.

The first downside is that the proposal risks turning the cause of free speech into party political issue, thereby undermining the shared cultural norms on which academic discussion is based. However, any new legislation has to be implemented by a government, and while it might be preferable for the legislation in question to implemented by a coalition of parties, or by the Liberal Democrats, say, the only party that has both the means and the desire to implement such legislation at the present time is the Conservatives. In addition, there is already a vocal minority of students and academics who reject traditional norms of academic discussion. To suggest that the Education Secretary’s proposal is the main threat to those norms is, in my view, quite mistaken.

The second potential downside is that the proposal interferes with universities’ freedom of association. Do universities not have the right to no-platform anyone whom they, or a large enough number of their students, find objectionable? As Adekoya and colleagues note, it is clear that UK universities do not have the same freedom to associate as, say, religious institutions. They are public bodies, and are therefore subject to public norms. One reason why universities’ freedom to associate is, and indeed should be, limited is that they still receive a large amount of taxpayer funding. Another perhaps more important reason is that universities exist for a specific purpose—namely to pursue truth through education and research—and realising that purpose behoves them to uphold certain norms, such as open debate, free enquiry and viewpoint diversity. (This point was made eloquently by Jonathan Haidt in a lecture he delivered to the Royal Society of Arts in 2018.)

The third potential downside is that the Academic Freedom Champion could end up being “captured” by one or other political party. For example, the Conservatives might appoint someone who is strongly biased to the right. Or when Labour get into power, they might appoint someone who is strongly biased to the left. This could result in selective enforcement, or worse, the policy being used to target critics of the party to whom the Academic Freedom Champion owed his or her position (e.g. by fining institutions based on trumped-up charges). This concern should not be dismissed out of hand, but it is obviously a general problem with the appointment of regulators, rather than one specific to the higher education sector. And efforts will presumably be made to ensure the appointee is aware of the duty to act impartially.

The fourth potential downside is that the proposal may add yet more bureaucracy to already laden institutions, while only scratching the surface of what Kaufmann calls the “iceberg” of threats to academic freedom. Universities currently have obligations under various pieces of legislation (the Equality Act, the Prevent duty, Charity law) and some of these may conflict with the obligations outlined in the Education Secretary’s proposals. One could argue that, rather than introducing new legislation, it would make more sense to amend those pieces of existing legislation that permit or encourage universities to infringe their members’ free speech rights. I must admit that I am not sufficiently well-versed in the relevant law to properly evaluate this argument.

As to the claim that the proposals only scratch the surface, this is hardly a strong argument against implementing them, unless doing so would somehow mean that less action is taken elsewhere. Being realistic, the proposals are unlikely to solve one of the major underlying problems, which is that a sizable minority of students and academics are no longer interested in discussing ideas for their own sake, and now see academia primarily as a vehicle for political activism. Of course, the government cannot and should not attempt to stop university members criticising others, even where those criticisms amount to little more than ad hominem attacks. But by providing targets of cancel culture with legal recourse, the proposals may deter institutions from capitulating under pressure, and thereby make attacks that call for sanctions less common in the first place.

The fifth potential downside is that the proposal could have unintended consequences. If universities know they are at risk of being fined in the event that they discipline someone for expressing unorthodox views, they may decide to take pre-emptive measures. For example, they might “encourage” hiring committees and admissions offices to opt for “low risk” candidates. Or they might shift funding away from departments or research centres that are likely to generate controversy. This possibility should not be underestimated. On the other hand, the proposals could make life easier for university administrators by “tying their hands.” Confronted with a group of activists calling for sanctions against someone, administrators will be able to say, “The university would love to give into your demands, but unfortunately, because of this pesky law that has been foisted on us, we can’t.” The administrators get to look like they’re “down with the activists,” while free speech and academic freedom are left untrammelled.

Evidence suggests that free speech and academic freedom are under threat at UK universities. What’s more, a recent study concluded that Britain has less legal protection for academic freedom than nearly all 27 EU countries. Together, these observations would seem to provide a fairly strong rationale for policy change. The proposals set out by the Education Secretary aim to address a real problem, and while they are not without potential downsides, I believe the benefits of enacting them outweigh the associated risks. Of course, if anyone has an alternative proposal for dealing with threats to free speech at university, I’d be only too happy to consider it.

 

Noah Carl is an independent researcher based in the UK. Subscribe to his newsletter on Substack here and follow him on Twitter @NoahCarl90.