The government has published its higher education (freedom of speech) bill. Under it, universities will have a new duty to secure freedom of speech for staff members, students and visiting speakers. Anyone (“a person”) will be able to sue (“bring civil proceedings”) where they believe that a university or student union has failed to protect free speech. An official with the Orwellian title of “director for freedom of speech and academic freedom” will have to decide if courses, talks and university policies maintain academic freedom.
It is not wrong to think that free speech is often threatened. But much of the intimidation in recent years has come from Conservatives and the right. Take the equalities minister publicly criticising a journalist for doing their job. Or the culture secretary intervening in the curatorial decisions of museums.
As for the university sector, in 2019, Warwick lecturer Dr Goldie Osuri was accused of telling students: “The idea that the Labour party is antisemitic is very much an Israeli lobby kind of idea.” This year, Conservative MP Jonathan Gullis (a man who signed a letter that made use of the trope “cultural Marxism”) said that not just Osuri but the staff who investigated her and even her vice-chancellor all “need to go”.
In 2020, the Daily Mail newspaper published a story accusing a Cambridge professor, Priyamvada Gopal, of inciting racism. Later, it admitted it had libelled her, apologised and paid her £25,000 in compensation. The conservative commentator Douglas Murray argued, in relation to a tweet that Gopal had authored, that only her race protected her from dismissal.
There is no limit to the range of orders that can be sought under the government’s new bill. Under it, Osuri or Gopal could sue their universities requiring them to say that free speech was absolute and the university would not dismiss them. (It would not give either lecturer any protection against Conservative MPs lobbying for their dismissal.)
But the bill empowers a much wider group of people than lecturers. It is almost unique in British law in the breadth of its provision. Compare, for example, our rules on judicial review: if someone wants to challenge a decision of government they must have “standing” – they must be affected by the decision they challenge. But in the bill there is no standing requirement. Any person, any business, any campaign can sue.
Think of what this will do to ministers’ other policies: for example, their insistence that universities must implement the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism. Critics argue that the definition prohibits criticisms of Israel. If the bill is passed, then any university that has adopted the IHRA definition would be making themselves vulnerable to being sued – by a student, a lecturer, by anyone – for an order requiring the university to rewrite its policies and permit absolute free speech.
Isn’t it a good thing if anyone can sue? Not if the result is that every lecture, every seminar, every guest speech could end up in court action. In civil litigation, the loser must pay the winning side’s costs. The law is always, therefore, more attractive to the sorts of public campaigns that can find a wealthy sponsor to pay the bills if they lose.
Given the context in which it has emerged, the bill is clearly intended to protect rightwing campaigns, giving them a right to threaten universities in two ways at once. They will use the bill as a shield, demanding that their own speech is protected. They will use it as a sword, complaining that any radical speech is an attack on them.
If the bill passes then every time a university celebrates International Women’s Day there will be men’s rights organisations insisting that the university platform them, too. Every historian found to be teaching a course on the slave trade will give rise to demands that another lecture is provided, prioritising the slave owners’ view.
The civil servants who drafted the consultation for the bill took the view that all speech should be allowed so long as it was speech that the speaker supported. Equality law, they argued, agreed with them in favour of the maximum possible speech: “A speaking event where the content has been clearly advertised in advance is unlikely to constitute harassment if attenders attend with prior knowledge of the views likely to be expressed.”
This assumes that speakers at controversial events will push a certain distance and no further. But the past few years have seen university events with provocateurs such as Milo Yiannopoulos, in the US, who during a 2016 speech mocked a trans student, and at a 2017 event encouraged attenders to call immigration enforcement on local undocumented people, even publicising the phone number. Is this the kind of free speech that we need protected?
The legislation creates a director for freedom of speech and academic freedom tasked with maintaining academic freedom in universities. Maintaining a university community in which as many people as possible get to speak requires tact, political sophistication, and the ability to see each individual event and the people protesting against it on their own terms.
Ministers may pretend that they have the skills to choose a free speech tsar who is capable of giving universities the right advice. But what we have seen from the Conservatives’ other appointments is a determination to bring the public sector under one-party control, with fellow travellers put forward for roles in the BBC, EHRC and Ofcom.
Would the new director for freedom have the independence of mind to reprimand Jonathan Gullis when he called for Osuri’s dismissal? To ask the question is to answer it. This will be a conservative appointee who will see their job as being to discipline people associated with the left, and to promote the narrow demands of rightwing culture warriors.
David Renton is a campaigner and barrister. His next book is No Free Speech for Fascists: Exploring ‘No Platform’ in History, Law and Politics
