The Japanese have a great word, herikutsu, which they use to refer to self-evidently lame arguments or sophistry. Its literal translation is ‘fart logic’ or ‘fart reasoning’, and there were great clouds of it billowing through the House of Commons yesterday when Matt Western MP, shadow Minister for Further Education and Universities, rose to ‘debate’ the government’s proposed Higher Education (Freedom of Speech) Bill.
The Bill, which contains a raft of measures imposing duties on universities and students’ unions to protect freedom of speech on campus (in England, anyway), is probably soon to become law; the main substantive issue still to be decided was the exact scope of Clause 4. This is a provision essentially creating a new tort in English law, whereby a claimant may sue a university or students’ union for failing to secure freedom of speech.
This, in short, would allow an employee or student at a university to receive financial compensation from the institution if they have suffered adverse effects from expressing their ideas or beliefs. Obviously, the main point of the inclusion of this tort in the Bill is deterrence, and on those grounds it’s a very good idea. No, it won’t in itself redress the imbalance between left and right on campus, but it will at least create some space in which students can be exposed to alternative viewpoints and in which both staff and students can express themselves a little more openly without fear of the consequences.
Mr. Western came up with a tissue of assertions in favour of ‘softening’ the new tort. This would essentially limit the potential damages that would have to be paid out by universities to claimants to direct pecuniary losses – for example, a refund of student fees – rather than compensation for the loss of an entire career or permanent reputational harm (i.e., the kinds of things the prospect of which really exert a chilling effect on freedom of speech on campuses).
The first of Mr. Western’s assertions was that the problem of cancel culture is “largely exaggerated”. It seems astonishing that any sensible person could make that statement in 2023 (although I am aware that the “largely exaggerated” phrase has become a bit of a shibboleth among lefties on Twitter), but it was in any case immediately contradicted by Western’s second assertion, which is that successful claims would impose a huge cost burden on HE providers unless damages were limited. It’s not happening, in other words, but dealing with it will be really expensive – an odd riff on Michael Anton’s Law of Salutary Contradiction.
The second assertion by its own lights is in any case absurd; complaining that the inclusion of the new tort in the Bill will result in large sums having to be paid out in damages by universities (up to £180,000 including legal fees per claim, apparently) is a bit like complaining that the consequences of putting one’s hand in the fire results in being burned. There is a simple way for universities to avoid having to make big payouts: secure freedom of speech. That’s the whole point of the Bill in the first place.
The third, related assertion put forward by Mr. Western was that if universities end up having to pay large sums in damages to staff or students who have been adversely affected for expressing their views, this will make for less money to be spent on improving the “student experience”. Again, it seems astonishing that any sensible person can make such a claim in 2023, when the “student experience” has become utterly denuded of genuine discussion and debate and the approach to teaching can in most cases be summarised succinctly as: “I’ll tell you what to think, and you think it.” But then, of course, one has to remember who one is dealing with: for a Labour Party shadow universities minister, the fact that universities serve up only the thinnest of woke gruel to their students is a feature, rather than a bug. That the “student experience” might be improved by giving students a slightly more varied diet simply won’t have occurred to him – universities are for making sure students have a jolly nice time while growing up to be good Labour voters. (Remember when the Labour Party thought of itself as being on the side of employees who had been wronged by their bosses?)
The first three of his assertions, then, are bunk and balderdash and various other words I could mention beginning with the letter ‘b’. The fourth assertion – that there was sensible centrist consensus in the House of Lords that Clause 4 should not be included in the Bill at all, and that the Government was being unreasonable in insisting on its inclusion – is worse in the sense that it is a deceptive half-truth.
Mr. Western was right, indeed, that there was opposition to the inclusion of the new tort in the Lords and that the general preference was for it not to have been included. But that opposition largely seems to have come from voices which – how shall I put this? – may not have been impeccably neutral. Lord Grabiner, for example, an arch-Blairite champagne socialist of caricature, who once earned £3,000 an hour advising News Corp about ethical standards, expressed concern, but then again as President of the University of Law, a large HE provider, he probably would do. And reading the debate, one is struck by how many of the speakers fall into that category – being themselves professors, university chancellors, and so on.
In this regard, Lord Moore of Etchingham made a valuable contribution that is worth quoting at length:
I draw noble Lords’ attention to the famous words of Adam Smith that no people of the same trade are ever gathered together, even for diversion or merriment, without at some point conspiring against the public. It is lovely to have so many noble Peers in this House who hold or have held high positions in universities and university administrations — chancellors, vice-chancellors, professors and all the rest of them — but overall they constitute an interest. Their interest, naturally enough, is to believe that they are right, universities are well run and the critics are wrong. I ask them perhaps to consider that none of this would have come about if universities were being well run. These freedom of speech issues are very important and need some bolstering. When so many noble Peers who are associated with universities challenge and reject that, they must be conscious not to behave like trade union leaders in the 1980s who were defending powers that, it became clear, were unacceptable.
In other words, any government seeking to do anything meaningful with regard to university reform is going to face an uphill battle against the House of Lords, because so many of them, frankly, have skin in the game. For Mr. Western to present Lords opposition to Clause 4 as being merely good, common sense, cross-party consensus was therefore almost entirely misleading. There was consensus, alright, but it would be more accurate to call it cross-sectoral within HE – and it was certainly not founded on common sense or objective reason. It was based on the good old principle that turkeys don’t vote for Christmas.
The Bill will now have to go for consideration again at the House of Lords because the Government has stuck to its guns and insisted that courts must be able to award damages for non-pecuniary losses (that is, to compensate for reputational harm or a curtailed career) to a successful claimant who is suing a university or students’ union on this basis. At long last, after years of Tory politicians pussy-footing around the subject, it seems that when it comes to universities there is now a proper fight on and we have a crop of Conservative MPs who actually get it.
Busqueros is a pseudonym.
Stop Press: One of the MPs who ‘gets it’ is Miriam Cates, MP for Penistone and Stockbridge. Watch her making a speech in the House of Commons Debate on the Higher Ed Bill on Tuesday.
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