Higher Education (Freedom of Speech) Bill

Written Evidence submitted by Dr David Renton, barrister, and Prof Alison Scott-Baumann, SOAS, SOAS ICOP (HEFSB12)

The Higher Education (Freedom of Speech) Bill

Written evidence submitted by SOAS ICOP

for Dr David Renton, barrister, Garden Court Chambers

and Prof Alison Scott-Baumann SOAS

Dr David Renton specialises in housing, discrimination and employment law at Garden Court Chambers and blogs at https://livesrunning.wordpress.com/

SOAS ICOP aims to bring experts and academics closer together with parliamentarians to work together on shared problems. By working co-operatively we reduce the democratic deficit arising from ignorance of Westminster’s ways. We provide regular ICOP briefings on complex issues which are a boon for busy parliamentarians and we are in the process of establishing an APPG on freedom of expression https://blogs.soas.ac.uk/cop/

SUMMARY:

· There is no free speech crisis that warrants this legislation

· This legislation is exceptionally broad and will have dangerous consequences

· It undermines longstanding equality legislation, which must always have priority

· It is impractical and will clog the courts and cause chaos in the classroom

· The best option is to reject the bill

· The bare minimum is to amend the bill to incorporate equality legislation and remove the right to sue.

Section A: Lawsuits will replace each university’s ability to make sensible judgements

1. The government has published its higher education (freedom of speech) billhere being little evidence of a free speech crisis in the sector [1] . Moreover, no platforming is used elsewhere, including on digital platforms [2] . The bill overlooks these realities and imposes on universities a new duty to secure freedom of speech for staff members, students and visiting speakers. To enforce this, it proposes a new Director for Freedom of Speech and Academic Freedom who will have powers to determine on whether courses, talks or university policies maintain academic freedom. With this new recourse to legislation, anyone ("a person") will be able to sue ("bring civil proceedings") if they believe that a university or student union has failed to protect free speech; thus, any lecture, seminar or guest speech could lead to a lawsuit.

2. This breadth of provision in the Higher Education (Freedom of Speech) Bill is almost unique in British law. Compare, for example, the existing rules on judicial review: Generally, if someone wants to challenge a decision of government they must have "standing" – they must be affected by the decision they challenge. To the contrary, this bill contains no standing requirement: any person, any business, and any campaign can sue the university.

3. The bill is also incompatible with other government policies, and will have dangerous implications. One example is the policy to prevent Holocaust Denial. If the bill is passed, then any university that refuses platforms to Holocaust Deniers can be sued, by a student, a lecturer, or by anyone. And the same problem of encouraging litigation will apply to all the big free speech issues of the day: the Prevent counter extremism guidance, Israel/Palestine, trans rights etc.

4. In the courts this will provide a weapon for the powerful and the wealthy. In civil litigation, the loser must pay the winning side’s costs. So the law is always more attractive to the sorts of public campaigns that can find a wealthy sponsor to pay the bills if they lose.

5. Individuals and campaigners will use the bill as a shield, and demand that their own speech is protected. They will also use it as a weapon to complain that any radical statement is an attack on them. For example, every time a university celebrates International Women’s Day men’s rights organisations may insist that the university platform them, too. Every historian who delivers a lecture on the slave trade could be instructed to provide another one that prioritises the slave owners’ view.

6. A free-speech tsar should not be appointed: maintaining a university community in which as many people as possible get to speak requires tact, political understanding, and the ability to see each individual event on its own terms.

7. ACTION: Members of both houses should vote to reject the bill. Universities are already subject to stringent legal duties. These are sufficient to protect academic freedom.

Section B: The ‘free speech’ law must be amended to incorporate the Equality Act

8. SUMMARY: The universities minister Michelle Donelan insists that the Higher Education (Freedom of Speech) Bill will not require universities to accept speech that contravenes the Equality Act: "We can hold and articulate views which are objectionable to others as long as they don’t cross the threshold of hate speech" 1. However, it is clear that the bill now before parliament is an absolutist free speech bill which will ensure that the Equality Act will cease to apply.

9. For fifty years, universities (staff and students) have been concerned over whether far-right speakers should be allowed a platform. In April 1974 the National Union of Students encouraged universities to refuse platforms to "openly racist or fascist organisations or societies"2. The original target of the phrase "racist or fascist" was the National Front. This stance of prioritising human dignity and societal cohesion in line with equality laws has for the most part been upheld over the last thirty years.

10. This bill, however, damages this responsible approach to the free speech debate: it deprives universities of the discretion they used to enjoy in asserting that whilst free speech is important, there are other values at stake, and equality law must also apply. From its very first clause the bill overrides the Equality Act by creating a new and absolute "Duty to take steps to secure freedom of speech". This bill also insists that universities "must take steps that […] are reasonably practicable" to uphold free speech, as per stated objectives (see A1, clauses (2), (3) and (4)). However, those objectives ensure that universities can no longer refuse to host a speaker. If a university decides not to host an unwelcome event (if contacted for the first time an hour before the event is due to start), it must provide reasonable opportunities to host that speaker later.

11. In addition, the bill allows anyone to sue a university for damages, an injunction, or a declaration in circumstances where they believe that their free speech has been limited. Thus, it will be judges, not academics or ministers who will interpret the bill. Judges will probably argue that the Bill constitutionalises free speech, making it a defining purpose of universities. When students object: ‘What about the ban on hate speech?’, the response will be: ‘I’m sorry, it doesn’t apply anymore.’

ACTION:

12. If this legislation is to pass, it must incorporate a "saving clause" which clearly states that the Equality Act still applies. Members should propose the following amendments to clause 1(A1)(1) - the new text is in square brackets:

"The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom of speech, [and the need to give due regard to eliminate discrimination etc pursuant to the Equality Act 2010], are reasonably practicable for it to take in order to achieve the objective in subsection (2)."

13. Members should propose to amend clause 2(A4)(1) to reflect the above.

14. Members should remove clause 3 and the individual right to sue.

7 September 2021

References for section B

1 Mclaughlin, M. "Michelle Donelan responds to concerns of anti-Semitism". This is Wiltshire, 14.05.21

2 Smith, E "45 Years On: The History and Continuing Importance of ‘No Platform". New Socialist. 18.04.19


[1] Scott-Baumann, A and S. Perfect. 2021. Freedom of Speech in Universities. Islam Charities and Counter-terrorism. Routledge: London and New York

[2] Renton, D in press. No Free Speech for Fascists Exploring ‘No Platform’ in History, Law and Politics. Routledge.

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Prepared 16th September 2021