As the Higher Education (Freedom of Speech) Bill returns to the House of Commons for its final stages, Professor Nigel Biggar explains that if the Bill is to have teeth, then the statutory tort provision should be restored.
The leaders of Britain’s universities have gone on the attack. They are seriously unhappy with the Government’s Higher Education (Freedom of Speech) Bill. According to the Times (18 January), the Russell Group is leading a body of universities in calling for a parliamentary inquiry into the Office for Students (OfS), where the bill would create a new free speech champion with the power to fine institutions that wrongly curb free speech. Questioning whether the OfS is “genuinely independent”, the Group’s chief executive, Tim Bradshaw, complains that “the new wide-ranging powers regarding freedom of speech” have “the potential to create huge amounts of unnecessary bureaucracy if not done right”.
Last autumn (17 November 2022), Dr Bradshaw published an article in the Times claiming that there is no problem with free speech in need of a legislative solution, since data from the OfS itself “shows universities in England approved 99.8 per cent of requests for external speakers in 2021/22”, and “a clear majority of students surveyed recently said they believed their university protected free speech effectively”.
Yet, to anyone with open eyes it has been manifest for several years that the threat to free speech in universities is far, far broader than the cancellation of a handful of events. It extends to the authoritarian imposition of ‘decolonisation’ upon faculties with no open, critical discussion of its assumptions and no provision for conscientious dissent. It encompasses requiring a record of active promotion of ‘equity, diversity, and inclusion’—without any discussion or agreement about what these should mean—as a condition of being appointed, promoted, and awarded a grant. At one point it included the proposal (at the University of Cambridge) to set up a scheme to enable students to make anonymous complaints against their professors for perceived transgressions, though that had subsequently to be withdrawn. And it even stretches as far as professors being driven out of their jobs by hateful, menacing student campaigns from which university authorities had failed to protect them. Twelve months before Dr Bradshaw penned his article, Professor Kathleen Stock had been effectively forced out of her 18-year-long career at the University of Sussex because of her philosophical objections to transgender ideology.
And, of course, a ‘clear majority’ of students report that they see no problem with free speech on campus. Some of them zealously agree with prevailing orthodoxies about gender, race, and colonialism. Others, observing how university authorities endorse the orthodoxies and the trouble dissent attracts, suppress their doubts. What’s significant in this case is the view of intellectual and political minorities. And polling tells us that a full quarter of students, rising to 59% of Conservative-supporters, say that they feel compelled to censor themselves.
Not content with demanding an inquiry into the ‘genuine independence’ of the OfS—which disingenuously suggests that all this fuss about free speech is just a political diversion fabricated by a Conservative Government—university leaders with their blind eye firmly pressed to the telescope have succeeded in getting their supporters in the House of Lords to neuter part of the Bill, at least for the time being. This the Lords have amended by removing the provision of a new statutory tort, which would enable individual academics and students to sue their institutions for unlawful restriction of their free speech, without incurring the prohibitive costs of judicial review. Absent this provision, the Bill is returning to the House of Commons, threatening delinquent universities with nothing more than ‘recommendations’ by the OfS that can be ignored with impunity.
Had university leaders shown that they were willing to take the threats to free speech on campus seriously, had they shown any curiosity about why the likes of me, an Oxford theologian, and Arif Ahmed, a Cambridge philosopher, have been writing in the press about the problem for over three years, had they invited the Free Speech Union to share and discuss its data about the full range of free speech issues, the ultimate threat of legal compulsion might be unnecessary. Clearly, that is not the case.
Sadly, the sight of a big legal stick in the background is absolutely necessary to get universities to transfer the telescope to their good eye. Once they’ve been made to do that, honest, open discussion of the problems can begin, producing lawful solutions that push the threat of legal compulsion into the margins of improbability.
If the Bill is not to be rendered toothless, and if it is to achieve the vital institutional and cultural effects it intends, the Government must reinsert the provision of a statutory tort now as the Bill is back in the Commons for its final stages.
Nigel Biggar is Regius Professor Emeritus of Moral Theology at the University of Oxford, chairman of the board of the Free Speech Union, and author of Colonialism: A Moral Reckoning, which is to be published by William Collins on 2 February.
He is a co-author of Politeia’s Freedom to Think, Freedom to Speak! Why UK Universities Must Change Course published in December 2022.