Advance HE/Higher Education Policy Institute (HEPI) House of Commons Breakfast Seminar: Has the higher education sector got it right on freedom of speech? How can governors and managers best support difficult-and-lawful speech in practice?

Almost a year after The Higher Education (Freedom of Speech) Act received royal assent, the Advance HE/HEPI panel of university leaders and academics - including Professor Robert Van de Noort, Vice Chancellor (VC) of Reading University; Professor Tom Lawson, Deputy-VC at Northumbria University; Professor Alice Sullivan, Head of Research at UCL’s Social Research Institute; and Professor Adam Habib, Director of SOAS and former VC of the University of Witwatersrand in Johannesburg, South Africa - gave their assessment of the state of academic freedom and freedom of speech in UK universities. They outlined the tensions inherent in the debate and in decision-making and suggested principles and approaches that might be useful to university governance striving to meet their obligations under the Act.

At-a-glance:

• The “echo chambers” that might always have existed in HE have become more pronounced, and more intolerant of diverging views. Colleagues all too often self-sensor their views because speaking out and being a divergent voice in an echo chamber can feel like a career limiting move, according to Professor Van de Noort.
• Some of the formal structures put in place in HE over the last decade have further limited views, Professor Van de Noort suggested. Universities score higher in the TEF, REF and B3 conditions if they present themselves as having a high degree of conformity and consistency rather than showing a significant degree of diversity of thought and approach. Some REF panels are not generous to outputs outside their own paradigm. 
• VCs need to be more courageous themselves and actively as well as implicitly promote a culture of diversity of thought, Professor Van de Noort added.
• Insufficient attention is paid to the tension between the duties on universities to actively promote freedom of speech and their obligation to protect members of their community from harm, according to Professor Lawson.
• Under freedom of speech obligations, institutions must allow debate, discussion and protest. Professor Lawson suggested that, for example, institutions needed to find ways to support students who may find discussion of the current conflict in Gaza uncomfortable. In the same way, universities need to find ways to give support to trans students who find gender critical perspectives threatening. Repetition of challenging views makes this problematic, however. When does repeatedly providing a platform for these issues undermine obligations towards staff/student wellbeing or slip into disrespect or harassment, Professor Lawson asked.
• Institutions should be able to take a view that there is a point when they say “no, we are not able to continually talk about this, week after week, because we know it does harm”. It is reasonable for institutions to make such a judgement though it might fall foul of current obligations on freedom of speech, Professor Lawson argued.
• University leaders were urged by Professor Sullivan to do more to show understanding of the role that harassment and bullying can play in undermining academic freedom.
• Equality, diversity and inclusion (EDI) policies and activities should exist to uphold the Equality Act, and must not be allowed to be hijacked by political activists, Professor Sullivan warned. Universities should cut ties with any organisation that promotes a culture of no debate, she added.
• We have a serious challenge of academic freedom in the UK and have been lying to ourselves for a long time that we don’t have a problem, according to Professor Habib. People are scared to speak on substantive issues around identity, trans, race and some political issues, he said.
• Professor Habib argued that politicians have displayed “schizophrenic” behaviour on the issue of free speech. VCs have received multiple letters from politicians that on the one hand ask universities to protect academic freedom and on the other say “could you act against a group of student leaders that we don’t like for these particular reasons”. 
• Universities which are serious about academic freedom should apply four principles, Professor Habib suggested. These are accountability, consistency, empathy, and plurality.

View from the chair, Advance HE’s Director for EDI, David Bass: 

This was an engaging, challenging event. All four speakers are highly credible leaders and experts in this space. The panel challenged the audience on how well we’ve prioritised free speech, and how much further the sector still has to go. 

I mentioned in my opening remarks that Advance HE is enhancing the support we offer members on free speech, but particularly in relation to the real challenge of decision making. We’re publishing new guidance on protected beliefs (often at the heart of conflicts on free speech) and lessons from recent court rulings, such as the Phoenix and Miller judgements. We’re also updating our guidance on fostering good relations, and offering a Strategic Preparation Programme on free speech, risk and EDI (see more below). The panel aptly illustrated the challenges facing institutional leaders in making decisions on the ground, in highly pressurised (often politicised) environments, when the legal context can appear murky. Professor Lawson’s provocation, of navigating free speech alongside claims of Antisemitism and harassment, is particularly powerful. Institutions should be asking themselves at what stage their staff or students might objectively face an environment that is hostile or degrading, potentially due to repeated events or protests, and what steps they can lawfully take. This is a legitimate question. It needs to be balanced alongside a proactive approach to securing free speech, and a clear commitment to ensuring lawful speech is protected, even when it is viewed as offensive. A priority for every governing body should be ensuring we have clear processes and confidence in these types of judgements. 

Implications for governance:

As governors will be aware, the Higher Education (Freedom of Speech) Act became law in May last year and universities have been grappling with how to ensure its obligations and duties will be met and what its impact on decision making and university life in general might be.

The conversations are very much live, with two consultations about the policy detail. The first, which closes on 10 March, relates to the free speech complaints scheme. The second, with a deadline of 17 March, is about the approach to regulating students unions and associations on free speech matters.

Adding to these debates, university leaders and academics in the Advance HE/HEPI breakfast seminar were candid in their appraisals of the tensions surrounding free speech and academic freedom and the need for a sector wide cultural reset. Most speakers argued that intolerance of divergent views and self-censorship in universities was an issue that was unlikely to be put right by the Act, but that the legislation had at least brought it into the light.

From a governors’ perspective, boards need to be assured that policies, processes and procedures are in place to ensure that freedom of speech and academic freedom are upheld and promoted. University UK’s guidance might be useful as a starting point for what needs to be considered on legal duties, updating existing codes of practise and other considerations. Advance HE is also preparing guidance on free speech and academic freedom and fostering good relations between different groups.

One of the key messages from speakers was the importance of good decision making in difficult contexts, while acknowledging that no two contexts in this space are the same. Governing boards might want to consider how the executive can be supported and challenged to put in place the necessary steps and foundations to make it as likely as possible that good, justifiable decisions are made consistently.

As Professor Lawson pointed out, areas of conflict may not be static or one-off events but ongoing episodes that can start out as acceptable and easy to support as an example of free speech, but descend into behaviour that has the potential to cause harm.

The seminar was given an example of recent solidarity action by students which was given the go ahead on the proviso that buildings should not be blocked or individuals targeted. When in the course of the action, students triggered fire alarms, targeted individuals and caused access problems, they were suspended. The decision faced a backlash from staff and students but the executive “stood ground”, citing rules designed to defend a tolerant atmosphere.

One avenue that universities are beginning to look at is how they might bolster students’ ability to deal with views they find upsetting or offensive rather than attempting to stop those views being raised. As a number of speakers alluded to the right not to be offended does not exist. One institution recently launched a “Disagree Well” campaign, for instance, which includes events such as teaching “difficult histories” and disagreeing well online. 

Speakers also warned that protecting diversity needs to extend to the inclusion of voices that might not fit with the prevailing paradigm or with the views of small groups with disproportionate influence. 

Defending freedom of speech will require courage across higher education, including in governing boards, so that all institutions and organisations are engaged in actively and implicitly promoting a culture of diversity of thought, they argued.  

As one speaker put it: “We need to be bold when protecting academic freedom and we need to tread lightly on entering current debates. If we do not, universities risk becoming less universal and more homogenous and that is a big risk to society.”