Government proposals for legislation to ‘protect free speech’ in universities are part of the ongoing culture wars designed to please the rightwing press, argues Mike Macnair. This article is adapted from his June 20 Online Communist Forum talk
The government announced in the May 11 queen’s speech that it would legislate to protect “free speech” in universities and other higher-education providers (HEPs). The proposal is accompanied by an escalating ‘culture wars’ campaign in the Tory press, which complains of both ‘wokeness’ and ‘cancel culture’.
But these proposals arrive contemporaneously with the same Tory press campaigning for ‘cancel culture’ in relation to pro-Palestinian speech. At the university where I happen to work, Oxford, March this year saw a no-platforming campaign mounted in the name of ‘political correctness’ - ‘anti-racism’ - against Ken Loach being invited to speak at St Peter’s College. In this context, the idea that we should believe that the Conservative Party is committed to freedom of speech and academic freedom in universities and other HEPs would become frankly laughable if it were not for the evident success of these ‘big lie’ techniques in recent years
‘Leon Trotsky was a fascist, and I know it for a fact. First I said it, then I read it in the Hitler-Stalin pact.’ And then you have: ‘Saddam Hussein had weapons of mass destruction’; ‘Barack Obama was not born in the USA’; ‘Jeremy Corbyn is an anti-Semite’; ‘Donald Trump is a Russian agent’; ‘Brexit will allow a massive increase in health spending’; ‘British success with vaccination is the product of the private sector’, and so on, and so on …
The government already trailed the idea of legislating for ‘free speech in universities’ and ‘academic freedom’ in February.1 If what it now puts forward is even remotely similar to its February proposals, it will in substance be sham legislation, which serves merely to support the Tory press’s culture-wars agenda and win favourable headlines in the Daily Hate Mail, without making any significant difference to what happens in the real world.
Even if the government had had a serious and honest intention of increasing freedom of speech in universities and other HEPs, it would be radically inconsistent to run a campaign in favour of no-platforming people like Ken Loach, campaign against so-called ‘anti-Semitism’ (meaning merely support for the Palestinians) and demand that universities adopt the “International Holocaust Remembrance Association definition of anti-Semitism”. This activity, backed by the Tory government, is from beginning to end a no-platforming/‘cancel culture’ campaign on the basis of political correctness. The political correctness in this case being that anti-Zionism is allegedly anti-Semitism, and therefore racism, and that it therefore ought to be no-platformed and so on.
What then are the concrete proposals which government is making for legislation on ‘free speech in universities’? The background context is that already - by virtue of the Education (No2) Act, 1986, section 43 - universities and other institutions of higher education are under a statutory duty to secure and promote freedom of speech on campus. This section can indeed help put backbone in university administrations against campaigns like the attempt to no-platform Ken Loach, and St Peter’s College was tough-minded enough to see this one off. The government proposes to ‘tighten up’ the section 43 rule, although it does not say exactly how it proposes to do so.
Secondly there will be a new ‘director of free speech’ within the Office for Students regulatory body. Now the OfS technically already requires universities to lay out how they are going to comply with section 43 as a condition of their registration and hence their being entitled to award degrees. But all that means is that universities have to submit forms and tick boxes to show that they have a pro-free speech policy. The new director of free speech within the office for students will be a person who will be responsible for promoting this regulatory framework and further will be responsible for hearing and dealing with complaints from students and others about violation of the section 43 duty.
The OfS is to be given increased power to sanction universities which are not compliant with its free speech instructions. But, given that it already has the power to take away the degree-awarding powers if there is non-compliance with the section, it is not clear that ‘enhanced powers’ will make any difference. By analogy with similar figures, the ‘director of free speech’ could be known as the ‘free speech tsar’ (like the ‘drugs tsar’), which would be a nice contradiction in terms - the February consultation paper avoided this problem by calling the official the “free speech champion”.
Thirdly, there will be tighter regulation of universities’ free speech policies: ie, a body of text prescribed by the OfS to be compulsory in university free speech policies. The OfS already requires universities to tell students about their free speech policies every year; HEPs merely put them on websites. The government does not propose to change that requirement, and I do not think that it will insist on student assemblies at which the vice-chancellor will stand up and read out the government’s favoured text about free speech policy.
Fourth, student unions will be directly regulated by OfS. The present position is that student unions have the rather ambiguous character that they are in theory charities, and as such are regulated by the Charity Commission. In the 1970s it used to be a fun activity for rightwing law students to bring judicial review proceedings against student unions which tried to pass anti-apartheid motions and such-like, on the ground that this was political activity which student unions are not allowed to engage in! There is a curious conflict between the idea that, on the one hand, student unions are charities and, on the other, they represent student interests in negotiation with universities. In addition, it is generally part of the culture of higher education that student unions are supposed to be autonomous bodies and not simply emanations of the university or state; and in consequence they are also supposed to be the institutions through which students learn how to do politics (albeit the politics of the labour bureaucracy).
It is true that they are not financially autonomous. This has a history, connected to the issue of political action. Because student unions have not been reliably Conservative, Tory governments have gradually attacked their practical autonomy.2 But the Charity Commission, while promoting “independent” trustee arrangements and lawyer control of student union decisions, has been relatively hands-off in practice - reflecting the underlying conflict between charity status, and representative and political-training purposes. Bringing student unions under the remit of the OfS as opposed to the Charity Commission is supposed, according to the government’s consultation paper, to produce a more hands-on regulatory operation through the free speech tsar dealing with complaints against student unions that they have promoted anti-free speech operations in some way.
Fifth and finally, there is going to be a new tort liability against universities for violation of free speech duty under section 43. Thus a civil action for damages will lie in favour of people who claim to have suffered loss as a result of a cancellation: the organisers of meetings which have been cancelled and have then still had to pay money for rooms they have booked; speakers who have incurred travel costs, and so on.
The background to this is that the courts have ruled that section 43 does not create a civil (tort) liability. This is part of a much more general phenomenon of the courts trying to limit the scope of tort liabilities for breach of statutory duties. The purpose of this general policy, which started in the late 19th century, is to protect businesses against being liable to compensate workers for breaches of the factories acts and later safety legislation; or neighbours in relation to ‘statutory nuisances’; or ‘statutory undertakers’ like water companies against liability for failing to maintain a sufficient water pressure for fire brigade use (the original case).3 Because there is not a tort liability, the only remedy is judicial review proceedings. There is merely a right to apply for the decision to be quashed by the court - useless after a meeting has been cancelled, for instance. So creating a new tort liability is supposed to be beneficial from the point of view of deterring anti-free speech decisions.
How will a tort liability be enforced? In theory, if it is for a small amount of money, it can be brought in the small claims court, but it is always possible to argue that it raises ‘difficult issues’, which need to go to the high court - or to run up costs by appealing. Indeed, these claims are probably going to be treated as analogous to defamation claims: because certainly what a speaker who has been no-platformed is really complaining of is the reputational damage of being accused of being a racist, or a trans-exclusionary radical feminist (Terf), or whatever - not the loss of the price of a rail ticket and such-like expenses. So, although this claim is not a defamation claim, it is very much like one - and it will almost certainly wind up being taken over by the specialists in defamation.
The best description of the activity of these specialists is to say that the house of Saxe-Coburg-Gotha (Windsor) has since the middle of the 19th century been selling and denying justice in violation of Magna Carta chapter 29, which is one of the few parts that have not been repealed: the crown promises not to sell or deny justice. True, you do not personally pay the queen, as people used to personally pay King John for expedited treatment, or to stop their opponents’ judicial proceedings. Queen Victoria, Edward VII, George V, Edward VIII, George VI and Elizabeth II have not personally been taking money for selling and denying justice. Rather, they have been franchising the sale and denial of justice to the Bar of England and Wales and the Law Society through the ‘free market in legal services’ - and in particular in relation to defamation claims. The extortionate charges of barristers and solicitors dealing with defamation claims operate to price both lower-class claimants and lower-class defendants out of the right to their day in court.
It is, of course, not just in defamation, but more generally true that usually in litigation ‘deep pockets win’ - the research has not been done in this country, but in the USA it turns out that it is predictable who will win in public nuisance cases in connection with pollution on the basis of who spends more. Out of court, Hazel Genn’s 1987 book Hard bargaining4 demonstrated empirically that tort claimants in relation to industrial and road accidents usually wind up settling for much less than the law says they should get for their injuries, because the ability of the defendant insurance companies to exhaust the resources of the claimant’s lawyers is so effective. Again, Vince Cable’s wizard wheeze choked off most employment tribunal applications by pushing the fees up so much that people could not afford it - to the point that finally the UK Supreme Court struck it down as being an abuse of the power to set fees.5
So my point here is that what the government proposes in creating a tort liability is carefully designed to be under the control of this mechanism. Tort liability as such is necessarily controlled by the use of legal fees to choke off or facilitate access to justice. We can see that also in relation to the Labour Party’s disciplinary proceedings in the ‘anti-Semitism’ campaigns, where the litigation brought by supporters of the witch-hunt has been heard very rapidly and this has been backed up by no doubt very substantial sums of money spent on litigation. The people who are penalised, on the other hand, had much less time (and money).
St Peter’s College saw off the attempt to no-platform Ken Loach, but how many universities will be able to do that? And, if it came to litigation with someone backed by the government (as the ‘anti-Semitism’ no-platform advocates are), would the institution be allowed to spend the money to litigate? Christ Church college, which is one of the richer colleges in Oxford university, has had a fight going on between the dean, the head of the college, on the one side, and some of the academics, on the other. The Charity Commission has now intervened to query whether the academics have inappropriately spent the college’s money on litigating with the dean in relation to allegations of personal misconduct made against him, and whether that expenditure might be a breach of trust. Suppose that the Board of Deputies of British Jews, which backed the campaign to no-platform Ken Loach at St Peter’s, had actually litigated: might the Charity Commission not have said to the college that ‘it is your duty as charity trustees to roll over and comply with the demands rather than waste pounds on legal costs’?
Within the law
All through the February consultation paper - which is now to be acted upon - we are concerned with freedom of speech within the law. What does this mean? In fact, the consultation paper discusses two areas in which speech may be said to be ‘outside the law’ and equivocates on both of them. The first is the Equality Act 2010 and the related ‘public-sector equality duty’.
Now in point of fact it is the Equality Act and the public-sector equality duty which is the principal ground given for no-platforming. The argument is that anti-Zionist speech is anti-Semitic and in consequence Jewish students are made to feel unsafe and so permitting anti-Zionist speech is ‘harassment’ contrary to section 26 (and various other provisions) of the Equality Act. Equally, permitting Terf speech can be argued to be harassment of trans men and women, while permitting the use of overt racist arguments constitutes harassment of black students, and so on. But, equally, permitting a black supremacist argument could be ‘harassment’ on racial grounds - and, of course, when this stuff started with the incitement to racial hatred provisions of the Race Relations Act 1965, one of the first people convicted was the black power advocate, ‘Michael X’.
The appendix in the February 2021 consultation paper poses the question of speech as harassment, and says that in the government’s view it is only harassment under the Equality Act if it is targeted on a particular individual. That could be plausible if it were not for the fact that the harassment crime under the Equality Act is unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
Thus, the argument that there is a lot of speech which is offensive to people but is not illegalised by the provisions of the Equality Act is not true. The reality is that in that act the term ‘harassment’ is defined excessively broadly, because the prior legislation under the Protection from Harassment Act 1997 did require the conduct to be targeted on the person harassed, and in addition required a “course of conduct” involving more than two occasions. This is the background to the fact that under the Gordon Brown administration the Equality Act, which generalised discrimination law, included a definition of harassment so broad that it is actually inconsistent with any general freedom of speech.
Secondly - and probably equally important in practice in limiting freedom of speech and association in HEPs - is the ‘Prevent duty’ under the Counterterrorism and Security Act 2015. This is a general duty on public institutions of one sort or another to have due regard to the need to prevent people from being drawn into terrorism. It includes HEPs, and the governing body of the institution is required to have regard to guidance issued by the home secretary when carrying out the duty.
We had some discussion about this in Oxford, and the original proposals which were brought forward by the administration to comply with the ‘Prevent duty’ would fairly clearly have shut down Islamic society meetings, anti-war meetings and so on, as they might potentially involve ‘drawing people into terrorism’. Fortunately colleagues in the law faculty were able to point out that the act does not impliedly repeal section 43 of the 1986 act and certainly that the guidance issued by the home secretary in relation to the ‘Prevent duty’ does not impliedly repeal section 43 of the 1986 act. However, that is Oxford. I guess that an awful lot of other institutions will just have complied with the home secretary’s guidance. But the February consultation paper interprets the ‘Prevent duty’ substantially more narrowly than the home secretary’s guidance did.
It should be added to the ‘Prevent duty’ point that, as well as very widely drawn ‘harassment’ legislation, there is also similarly very widely drawn anti-terrorism legislation: for example, the Terrorism Acts 2001 and 2006, passed under Blair, which are so widely drawn as to criminalise as ‘terrorism’ most of the activities of Extinction Rebellion, or - for example - hacking for any political purpose. That these acts have not been used in this way results from the fact that governments have thought the result would be a political embarrassment and juries would be unwilling to convict.
Other forms of speech not mentioned in the consultation paper are also ‘outside the law’. Defamation, for example, is unlawful. But what is defamation? Until Robert Maxwell fell off the back of a boat, to say ‘Robert Maxwell is a crook’ was defamation - and there is a whole raft of other examples of one sort or another of uses of ‘gagging injunctions’ adopted by various people and firms wealthy enough to afford defamation litigation to prevent speech. Speech or publication which is in contempt of court is also ‘outside the law’ - not merely in the case of ‘gagging injunctions’ then, but also in the case of violation of the courts’ indefensible extensions of rights to enforce non-reporting of judicial proceedings.
So my point here is that, when the government insists that the legislation must protect freedom of speech within the law, that expression certainly constitutes weasel words: it does not propose cutting down the over-broad scope of the harassment definition, getting rid of the ‘Prevent duty’, reducing the courts’ powers to restrict reporting of their proceedings or making clear that freedom of speech within the law means freedom of speech subject to the risk of being sued for defamation, but that risk of being sued for defamation is not a reason why the institution should shut down public meetings or discussions. So ‘within the law’, without proposals to restore the range of permitted freedom of speech by cutting down the vague limitations on it, leaves intact most of the real reasons actually offered for suppressing speech in universities and other HEPs, and puts the question wholly into the hands of ‘m’learned friends’ and the deep pockets that pay them.
The proposals are, then, designed to be regulated in the interests of the Conservative Party and their friends. But it is very questionable what effect there will be beyond an additional level of bureaucratic paperwork for university administrations and wasting court time and pseudo-judicial bureaucratic operations in the OfS.
The section 43 commitment has been in place since 1986. It did not choke off student no-platforming campaigns then and there is no reason to suppose that the new scheme will do so now. The underlying issue remains the contradiction between the claim that, on the one hand, student unions are charities and their financial dependence on the institutions of which they are part; and, on the other hand, their role as representing student interests and as training grounds in politics.
The point that the proposals will not improve free speech is not unique to me. Tory peer Lord (Daniel) Finkelstein made the same point in The Times, in a comment headlined: “A new free speech law will harm free speech” (May 19). Finkelstein, of course, makes the point because he is a supporter of the ‘anti-Semitism’ no-platforming and smear campaign. But it is nonetheless valid. By increasing reporting obligations and making actual cancellation of meetings risky, it will become attractive to the bureaucrats to simply decline to take bookings at the first stage or push the pricing of student-organised meetings up to the level of charges of the commercial conference business, thus shutting down a lot of public meetings.
Maybe anti-Zionist speech will be taken to be ‘unlawful’ and pro-colonialist speech ‘protected’ - thus Nigel Biggar - famous or infamous for asserting ethical justifications for the British empire - is a CBE on the queen’s birthday honours list, and the academics’ open letter criticising him is taken by Tory ministers to be an example of ‘harassment’. But it is more likely that the proposals just do nothing except increase box-ticking paperwork, without serious practical impact.
This is common to a good deal of legislation passed in recent years. Some of it has been designed to do the minimum possible in the way of actual change, while at the same time making good headlines for the Daily Hate Mail. I wrote in March about the Police Crime, Sentencing and Courts Bill, against which there has been a ‘Kill the bill’ campaign; but the reality is that the only legal change resulting from this bill, as far as I can see - other than wasting an awful lot of police time on making completely pointless reports of offences of violence, which the police would have to make in a different form anyhow - is to abolish the public nuisance liability of polluters by requiring the offender to have intended or been reckless as to the actual effects of the public nuisance activity.6
It has that character because the point of the current bill is simply to get good headlines. The same was true way back in the 1980s, when section 28 of the Local Government Act 1988 prohibited local authorities from ‘promoting homosexuality’. This bill had no practical teeth to it; its sole purpose was to serve as a continuation of the press campaign against the Inner London Education Authority and the Greater London Council under Ken Livingstone, as well as teachers using the book Jenny lives with Eric and Martin (which presented a gay male couple with a child as a family).7
The press culture-wars character of the project and the subordination of the legal changes to the Tory news management agenda can also be illustrated by a couple of other current ‘Oxford stories’. The first is that Magdalen College ‘Middle Common Room’ (the equivalent of a student union for postgraduate students) took down their photograph of the queen on the basis that she is associated with recent British colonialism (which is, of course, true). For the press, this was a brief scandal. The second is ‘Rhodes must fall’: there is a statue of Cecil Rhodes at the north end of Oriel College, hidden behind netting which is there to stop pigeons defecating on it. The campaign against this statue began in 2015-16 before fizzling out, but then revived last year in connection with Black Lives Matter. The campaign has been demanding the removal of this statue of the infamous colonialist and armed-robber raider (backer of the ‘Jameson raid’), who gave his name to the white-supremacist ‘Rhodesia’, which eventually became Zimbabwe.
Oriel has been dithering about what to do in response to the ‘Rhodes must fall’ campaign. It is historically one of the most rightwing colleges - the last to admit women (in 1985). Back in the 1970s there was an organisation called the ‘Oriel Reactionary Caucus’, which adopted as its symbol the SS’s double lightning bolts. The alumni, who are an important source of income for the college, are therefore hostile to the removal of the statue. The latest media ‘scandal’ arises from the fact that, because Oriel has yet again postponed a clear decision, around 150 academics have signed an open letter saying they will not give tutorials to Oriel students. Under the peculiar regime which prevails in Oxford. there is no breach of contract or illegality involved in this, because everybody is contracted to supply tutorials to members of their own college. Hence the only people who are obliged to teach Oriel students are Oriel tutors, so that the academics boycotting Oriel tuition are merely exercising their freedom of contract (which you might imagine would be dear to the Tory press …). Nonetheless, this boycott has also become a cause célèbre for the Tory press.
In essence what is happening is that the Conservative Party is now trying to adopt the American Republican Party policy of culture wars. In this context, the Tories can combine demands for freedom of speech for conservatives with demands for the preservation of ‘traditions’ and ‘traditional values’ (and here the Terfs can serve as ‘useful idiots’, just as Andrea Dworkin and Catharine MacKinnon served as ‘useful idiots’ for the Christian right in the 1980s), with demands for the suppression of anti-Zionist speech as a figure for ‘wokism’. The ‘big lie’ nature of this combination does not, as yet, matter, and may never do so. The loss of independent labour media, by way of the right social democrats and Eurocommunists being persuaded that ‘good PR technique’ made it unnecessary, means that the advertising-funded media is less likely to get caught out in its lies. And advertising-funded ‘social media’ has radically reduced the attention span of its users, so that the disproof of last month’s lies is quickly forgotten.
It is also part of the background that the Conservative Party wants to reverse the Blair-era (and possibly some of the Thatcher-era) expansion of higher education and send more school leavers straight into ‘apprenticeships’, training schemes, etc. So we can read quite a lot in the rightwing press at the moment about how universities are a waste of money and that students would do better to get jobs and so on. In this context campaigning against universities as (alleged) centres of censorship aims also to silence voices which might be critical of Tory policies.
Press v speech
My final point is this. This phenomenon of freedom of speech advocacy interplaying, in the name of bureaucratic regulation, with Tory press-led moral panic, illustrates a point that has been made by Slavko Splichal, and which I have also made myself: the freedom of the press and freedom of speech are counterposed ideas.8
no-platforming of supposed transphobes by trans rights activists we are unambiguously concerned with campaigns supported by small minorities. Why do they impact on university bureaucracies? Why is notice taken of them? The answer is because they are amplified by the advertising-funded media in the interests of their funders and in the interests of the Conservative Party. ‘Freedom of the press’ is freedom of the concrete physical and business assets of corporate media institutions. Freedom of the press is not freedom of speech; it is freedom of amplified speech - freedom of the amplified speaker to drown out contrary points of view. A lot of the cases giving rise to the evidence of there being a chilling atmosphere and so on and so forth is entirely about the amplification of relatively small protest movements by the media and the responses of the image management bureaucrats in university corporate management of one sort and another.
But the government consultation paper has nothing to say about this aspect of the story about free speech and no platforming in universities. That is because actually this process of amplification of small minority points of view by the advertising-funded media is not in the interests of knowledge or the truth, nor in the interests of the campaigners, but simply in the interests of the government and Conservative Party news management. The advertising-funded media amplify some voices in order to suppress others.
Communists stand for freedom of speech in general. We are equally for the right to publish without state control. But we have to recognise that this is a fight we have to conduct against the claims of the freedom of the advertising-funded media. Under capitalist class rule, our only means of pursuing this fight is to build our own media. And that requires a principled mass party - which we have yet to achieve.
Atkinson v Newcastle Waterworks (1877). The Conservative lord chancellor, Lord Cairns, unusually sat in the Court of Appeal to rule against the claimants.↩︎
H Genn Hard bargaining: out of court settlement in personal injury actions Oxford 1987.↩︎
Discussion in my article, ‘Rhetoric and political realities’ (Weekly Worker August 3 2017).↩︎
‘Police Bill spin’ Weekly Worker March 25.↩︎
On the legal content of section 28, see M Macnair, ‘Homosexuality in schools - section 28, Local Government Act 1988’ Education and the Law Vol 1, pp35-39 (1989).↩︎
S Splichal Principles of publicity and press freedom Maryland 2002; M Macnair, ‘Marxism and freedom of communication’ Critique No37, 2009, pp565-77.↩︎