Michelle Shipworth, an associate professor at University College London (UCL), has for several years taught a “data detectives” masters module on research methods that teaches students to critically appraise the use of data. One exercise involves discussing a Global Slavery Index finding that China has the second highest prevalence of modern slavery in the world, to help students understand the flawed nature of the data on which it is based.
Last October, one Chinese student complained that the example was a “horrible provocation”. Shipworth was asked by her head of department to remove the example from her course. A few weeks later, she was told complaints had been raised about her “bias” against students from China, based on the fact that two Chinese students had been expelled from the university after she discovered they had been cheating; she was told she could no longer teach her module and she should not post on social media about “educational issues about only one country”. The email expressed concern that if there was perception or misperception of bias, this could threaten the commercial viability of UCL courses.
This is but one case that highlights the fragility of academic freedom and free speech in British universities. This year, an employment tribunal found the Open University had facilitated a “targeted campaign of harassment” against Prof Jo Phoenix in a way that suppressed her academic freedom and amounted to constructive dismissal because of her gender-critical belief that sex is relevant in society. There are other cases of universities unlawfully suppressing gender-critical speech and research.
It takes huge courage to blow the whistle like Shipworth and Phoenix: an alarm bell that something is seriously amiss at a time where there are multiple pressures on academic freedom. These range from authoritarian countries like China putting pressure on students to challenge any criticism while universities are heavily reliant on their fee income, to academics ludicrously intolerant of mainstream beliefs in areas like sex and gender, who see bullying colleagues and management as fair game. The UK has slipped down the rankings of the global Academic Freedom Index in the last decade, now ranking only 66th.
Academic freedom – the freedom of scholars to question existing orthodoxies and put forward new ideas – is fundamental to the pursuit of knowledge and is a building block of democracy. Academic free speech thus attracts robust protection alongside political and journalistic free speech in the European convention on human rights; British universities are legally obliged to protect it under the Human Rights Act and Section 43 of the 1986 Education Act.
The protection is not unqualified: as Akua Reindorf KC, an eminent human rights expert, has set out, the ECHR does not protect Holocaust denial or other forms of hate speech, and outlines the grounds on which free expression can be limited, although public authorities will need to demonstrate the restriction is lawful and proportionate. A significant body of case law underpins that proportionality test. Why are universities getting away with flouting these critical legal obligations? There is currently no effective way for students and academics to enforce their free speech rights; if these relate to a protected belief, they may be able to pursue an Equality Act claim, as Phoenix did, but this takes years and can cost tens of thousands or more – and is not an option in cases such as Shipworth’s. Rights that are effectively unenforceable are often not worth the paper they’re written on.
Step in the Higher Education (Freedom of Speech) Act. Ushered through by Conservative ministers before the election, this legislation sets out an enforcement mechanism to give teeth to existing free speech law as it applies to universities (and extends free speech duties to student unions). The act has been met with considerable backlash by those who don’t seem to understand that it does not create new legal obligations for universities; it simply makes existing ECHR rights enforceable through a complaints scheme operated by the Office of Students.
In the face of this backlash, Labour ministers paused the implementation of the act’s enforcement mechanism, supposed to kick in before the start of the academic year. There is an issue with the draft guidance the OfS consulted on earlier this year; expert lawyers argue it needs to be more explicit about the limits to free expression protections as set out by the ECHR and accompanying case law. Given the OfS will be implementing the scheme and the final guidance was not published by the election, a pause was perhaps justified.
But the briefing of the decision was alarming; a government source labelled the act “the Tories’ hate speech charter”, a patently ridiculous way to describe legislation that gives teeth to pre-existing ECHR rights in a university setting. Labour needs to ensure that this really is just a pause, not the first step to repeal, and to listen to the legal experts who are abundantly clear that enforcing the ECHR in no way obliges universities to permit hateful or discriminatory speech.
There are wider lessons for Labour. Universities spend vast sums of young people’s future earnings – the typical graduate who started in 2022 will repay £47,000 – with too little accountability for the quality of their offer in terms of skills formation. Labour needs to be wary of being overly sympathetic to universities lobbying against accountability measures.
There are other signs that Labour might be too quick to frame free speech as one side of a partisan culture war rather than a substantive issue. Last week, the home secretary, Yvette Cooper, announced that she wanted to reverse changes that mean police officers should only record individuals engaging in “non crime hate incidents” if they are motivated by intentional hostility and there is a clear risk of escalation into harm or criminality.
A government source implied that this was somehow Conservative ministers choosing to downgrade the monitoring of racial hatred; in fact, it was an important protection required by the courts that found the police have used “non crime hate incidents” to unlawfully police citizens’ free speech.
Free speech is neither a “nice to have” nor a rightwing project: it is a fundamental tenet of democracy and when it is under threat, it is disempowered minorities who suffer most. Labour needs to stop seeing important free speech protections introduced by Tory ministers as expendable fuel for attacking their predecessors.
• Sonia Sodha is an Observer columnist
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