The law can’t end the culture wars

Those of us lucky enough to have enjoyed university before the Great Madness took hold tend to pity today’s students for the stifling political monoculture that now permeates their world. But, as so often, a dubious nostalgia is at work: the problem is not unique to the post-2014 Progressive era.

35 years ago, the government felt the need to add section 43 to the Education (No.2) Act 1986; it required universities to uphold freedom of speech, and was passed in response to a spate of No Platformings that feel depressingly familiar. “The most dishonourable case”, it was said, “was at Sunderland Polytechnic, where the Jewish Society was banned on the pretext that all Zionists are racists”. “From the objectionable to the absurd,” the Bill’s sponsor continued drily, “Guildford law school banned the Solicitor-General.”

But it’s not quite plus ça change. Manchester University’s students may have been spraying Michael Heseltine with red paint when he visited in 1983, but this year the institution graduated to deprecating the use of the word “mother”. Things do seem to have become worse.

Gavin Williamson certainly seems to think so. Yesterday, as he introduced The Higher Education (Freedom of Speech) Bill in Parliament, the Education Secretary declared it a “milestone moment,” promising to counter “the chilling effect of censorship on campus once and for all.”

The plan, first proposed by Williamson in February, is that instead of the toothless statutory duty we have now — a prescription without a penalty — academics and students who suffer for their speech will in future be able to sue for damages. And universities will have to “actively promote” free speech rather than merely “secure” it. In a similar vein, the requirement to maintain a Free Speech Code of Practice will be transformed — into a requirement to maintain a Free Speech Code of Practice “with minimum standards”. There will be Free Speech Champions. And a new Regulator.

The reaction to the White Paper on this Bill was divided along expected lines: excitement from the Telegraph, disdain from the Guardian. But while it might look like a step in the right direction, is any of it really capable of reducing self-censorship — or what Williamson refers to as “a climate where individual staff members are fearful regarding their employment status”? The Index on Censorship, in its lukewarm response, noted that “you simply can’t legislate for cultural change”. The Right would do well to ponder that observation.

The reality is that unless academics and students are given legal protection from capricious dismissal for politically unorthodox speech, Williamson’s changes are likely to be ineffective. They do not plug the hole in the hull, which is that in order to sack someone, a university need only deem their utterance “unlawful” — without any finding by any court. And given the current state of the criminal law, it’s all too easy for an HR department to make a semi-plausible — but wrong — finding of unlawfulness.

New Progressives — I’m staying away from the w-word — are fond of remarking that freedom of speech does not mean freedom from consequences. They sometimes try to draw a neat line beneath state-sponsored repercussions and hope no one notices that there are all sorts of other consequences that have the effect of restricting free speech in a way we might sensibly want to change. But they do have a point: if, by way of example, I form the opinion that the category of people-who-menstruate no longer merits its own short word for everyday use, and you express the contrary view, I am free to uninvite you to my dinner party, for instance, or refuse to co-author a paper with you.

So, if it’s from fear of social or professional rejection that self-censorship arises, there may not be much that anyone — even a Free Speech Champion — can do. But if the fear is of losing your job — or, as a student, greatly reducing your chances of ever finding one — the outlook is brighter: dismissal for speech transgressions could be outlawed in the absence of an actual criminal conviction. And the criminal law itself could usefully be simplified.

Much of our speech-crime legislation has become difficult to interpret in a fair and consistent way. For example, the least serious of these offences (section 5 Public Order Act 1986) has as its key elements words that mean different things to different people — threatening, abusive, harassment, alarm, distress. The same is true of the “Improper Use” offence in section 127 of the Communications Act 2003: offensive, indecent, menacing, annoyance, anxiety. The problem isn’t that meanings change over time — that’s expected, desirable even — it’s that we no longer have shared definitions for this kind of vocab.

When, following a long campaign, the word “insulting” was removed from the section 5 offence in 2013, the Home Secretary Theresa May begrudgingly accepted the change on the basis that Keir Starmer, then Director of Public Prosecutions, had assured her that “abusive” pretty much covers “insulting”, so it didn’t really matter. Some would disagree. And in 2021, many more would disagree, and more vehemently, about what is or is not covered by “abusive”.

The District Judge in the Kate Scottow trial last year (she referred to trans activist Stephanie Hayden as a “pig in a wig”) found her mis-gendering of Hayden to be “abusive”. The excoriating judgment in Scottow’s successful appeal to the High Court expressed no specific view on that point (because it didn’t need to in order to determine the appeal) but the tone and extent of the criticism of the District Judge’s approach suggests that it might well have concluded differently. Mr Justice Warby (now Lord Justice) said that her analysis was “legally flawed and inadequate” and that “her reasoning is deficient”. These are strong words by the linguistic conventions of the higher courts.

And if a District Judge can’t get this stuff right, what hope is there for University HR managers, and internal disciplinary panellists? Their judgment could deprive any tweeting student or lecturer of a livelihood. This decision, this power, should be removed from them.

If we want to secure freedom of speech in the long-term we must be clear about our purpose. And it shouldn’t just be the hope of a quick win in the current culture war. We all have a principled passion for our own particular brand of “tolerance”. Each side accuses the other of intolerance — and both are right. There is an intolerance inherent in the expressing of any idea, because time and attention are limited. I might sincerely claim to defend to the death your right to say something, but if I’m talking, you’re not. My ideas, my memes, which replicate between minds as genes do in bodies, are looking for the chance to spread in place of yours. That’s what a culture war is, and it’s never-ending.

So the reason we should want to protect free speech is to allow the process of cultural evolution to operate smoothly over time, rather than in calamitous bursts after long periods of sclerosis. Of course, periods of stability punctuated by flashes of turmoil might well be how culture naturally evolves. But if unpopular speech is too heavily suppressed, the periods of stasis will be unnaturally long. Most unpopular ideas are unpopular for good reason, but the truth is some turn out to be correct.

So let’s not rearrange deckchairs. Free Speech Champions have made for solid headlines, but they will be seen by many persuadable non-Tories as a sad little army of libertarian proctor-generals, and will have a predictably alienating effect. Instead, we should take care of the hull of the ship: sharpen up the vagaries of the criminal law, and prevent university authorities from applying it.

Freedom of speech urgently needs to be rescued from the battlefield of the culture war. We must acknowledge, for our long-term cultural prosperity, that it forms part of the rules of the game, rather than one of the prizes. The Government has a rare opportunity, with its large majority, to entrench an enduring basic level of free speech — by imposing sensible limits on the consequences of transgression. It should take that opportunity, and take care not to jeopardise support for it with ineffective meddling. For all its noisy “raft of measures” ambition, the new Bill looks a lot like a pruning that leaves the root of the problem unaffected.