The Chair of the All-Party Parliamentary University Group (APPUG), Daniel Zeichner MP, welcomed members to the event and introduced the panellists:
- Dr Michael Spence, President and Provost of University College London (UCL)
- Susan Lapworth, Chief Executive of the Office for Students (OfS)
- Akua Reindorf, Barrister specialising in employment, discrimination, and human rights law
In his introductory remarks, Daniel raised the importance of approaching the topic in a sensitive manner given the strong feelings on both sides of the debate. He said the fundamental question facing universities was how to make the legislation work in a sensible and reasonable way, which would be the focus of the proceeding discussion.
Dr Michael Spence began his presentation by outlining the central importance of free speech within universities and the approach at UCL. He described academic freedom as the capacity for an academic to direct their own work, participate in the governance of an institution, and remain free from government interference. He highlighted ‘live debates’ on whether academic freedom covered both academic and professional staff and whether free speech rights were limited to an individual’s academic expertise.
At UCL, Michael described the broad and robust conception of academic freedom that avoided being unnecessarily ‘chilling’. He clarified that the institution’s general position was that speech should be possible on campus so long as it is (i) lawful and (ii) does not give rise to public order problems that could not be managed. This liberal position is grounded in UCL’s function within a liberal democracy and captures the spirit of the institution. He described the strong track record of UCL Students’ Union in hosting over 1,000 events each year.
Michael proceeded to explain why maintaining a culture of free speech at universities was complex. Firstly, he outlined the growing tendency to speak within ‘bubbles’ which was leading to groupthink. He said this was an issue of good academic management and encouraging universities to consider a fuller conception of diversity within identities and views. Secondly, he described the declining practice of epistemic virtues which required universities to equip students with the skills to navigate contentious issues and enable them to ‘disagree well’. This was an important function for universities as testing grounds for liberal democracies. He said the university was exploring this theme internally and through public events.
In his concluding remarks, Michael raised the practice of universities adopting public positions and made comments on the tort within the Higher Education (Freedom of Speech) Bill. He said universities should be a forum, rather than a participant, in debate. This means universities should not adopt positions on matters of public life unless it directly impacts their operation. This was because of the potential ‘chilling effect’ it may have within the institution. Michael said he warmly welcomed the introduction of the new Bill but said the tort was extremely unwise as it would ‘arm’ students with the ability to make claims as political acts which universities would need to respond to as legal ones. This would cause unnecessary burden on universities.
In her opening remarks, Susan Lapworth said her contribution would focus on the regulatory perspective. She clarified that while the Bill would give new powers and duties to the OfS, the OfS already had an interest in regulating free speech across institutions. The underlying principles were familiar and the OfS had experience in navigating the complexities of tackling these issues.
Susan proceeded to outline the principles that the OfS operated by. Their fundamental premise is that freedom of expression is an essential component for a high-quality education for students. She said that vigorous debate was important, particular for contested topics. Secondly, she described the OfS as an independent regulator focused on the protection of lawful speech rather than fighting a ‘culture war’. Thirdly, she clarified that the OfS was concerned about the ‘chilling effect’. Susan celebrated the fact that the majority of events go ahead but said that issues ran deeper than high profile ‘no-platform’ cases. She said there was a ‘growing evidence base’ that certain topics were ‘implicitly beyond limits’.
On the complexities of tackling these issues on campus, Susan described free speech and academic freedom as sitting in the middle of numerous legal duties.
She outlined how the OfS recently published an insight brief on the legal and regulatory framework. She said that institutions were currently required to ‘take reasonably practical steps to secure free speech within the law’ and drew attention to the fact this was an active duty. This entails universities taking a wide range of steps in practice. Susan described how universities routinely publish public declarations on how they promote free speech, and clarified that this was a necessary, but likely not sufficient, measure for universities to comply with their current legal duties.
On the relationship between free speech duties and equality law, Susan described how universities were ‘grappling’ with the issue but were not always correct in their approach. She described how the OfS conceived free speech and equality law as being mutually compatible and reinforcing, rather than in competition with one another. The first example Susan gave was the incorrect framing of the Public Sector Equality Duty (PSED). She said the PSED was a duty to have ‘due regard’ to certain matters when acting, rather than a duty to achieve certain outcomes in practice. This incorrect framing could lead to lawful speech being curtailed. The second example was in relation to discrimination and harassment with institutions often using incorrect definitions of protected characteristics, or harassment, under the Equality Act 2010.
Susan acknowledged that these issues could be seen as technical but clarified that understanding them was important to avoid the curtailment of lawful speech.
In her concluding remarks, Susan made comments on the Bill. If the Bill received Royal Assent broadly as it was currently drafted, it would strengthen the duties on institutions to secure free speech, a code of practice, and a new duty to promote free speech. It would also place duties on Student Unions (SUs) and bring them under the regulatory scope of the OfS for the first time. She also outlined the changes within the OfS including the appointment of a Director for Freedom of Speech and Academic Freedom to the Board of the OfS. Susan said this had attracted headlines and debate with concern that this position could be politicised. She reassured members that the OfS was an independent statutory regulator and reiterated that the OfS would not take political stances on these issues.
Akua Reindorf opened her presentation by noting the concern universities had in ‘striking the balance’ between equality, diversity and inclusion (EDI) and free speech. She highlighted how this could ‘suck the lifeblood out of universities’ and be disproportionate to the issue at hand. She outlined the proposition that rather than competing with each other, EDI and free speech were all part of a single system of law.
She proceeded by outlining the existing legislative landscape. Akua said that universities had duties under the Equality Act 2010, Human Rights Act 1998, and Higher Education Research Act 2017. She described antisemitism (in the context of Israel and Palestine) and the sex/gender debate as the two major issues relating to these duties. The Equality Act contains protected characteristics including ‘philosophical beliefs’, which she described as a ‘version of’ freedom of speech.
On navigating conflicts, Akua explained how this could be resolved within the Equality Act and Human Rights Act. She said that universities often receive complaints of harassment in response to an exercise of free speech. Akua clarified that it was not the case that a claim constitutes harassment simply because the claimant has said it is. Rather, the Equality Act means claims of harassment need to be viewed through a ‘reasonableness’ lens. The fact that universities are a free speech environment would be considered in the assessment of reasonableness. She described that, under existing law, free speech will very often ‘trump’ claims of harassment.
Akua proceeded to outline changes under the new Bill. She said the Bill would ‘enshrine and fortify’ the position that free speech would trump claims of harassment. She said it would impose a duty on universities to promote free speech and academic freedom as well as taking ‘reasonably practical steps’ to secure free speech. She clarified that the duty was to have ‘particular’ rather than ‘due’ regard to secure free speech, which was a higher form of regard than that in the Public Sector Equality Duty.
In closing Akua outlined how universities could prepare for the new Bill. She said that universities would need to publish their free speech code of conduct. Regarding EDI policies, she urged universities to pay particular attention to verify they were lawful.
