Examination of Witness

Higher Education (Freedom of Speech) Bill – in a Public Bill Committee am 3:32 pm ar 13 Medi 2021.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Sunder Katwala gave evidence.

Photo of Christopher Chope Christopher Chope Ceidwadwyr, Christchurch 4:16, 13 Medi 2021

Mr Katwala, please could you introduce yourself for the record?

Sunder Katwala:

I am Sunder Katwala and am director of British Future, which is an independent, non-partisan think-tank and charity that engages the public on identity and related issues.

Photo of Christopher Chope Christopher Chope Ceidwadwyr, Christchurch

We have until 4.45 pm, so I hope that questions will be brief.

Photo of Matt Western Matt Western Shadow Minister (Education)

Q Thank you, Mr Katwala, for joining us today. I want to ask you a few questions. You have put on record your concern about this Bill opening up universities and student unions to being sued an unlimited number of times by people such as David Irving. Could you expand on those concerns?

Sunder Katwala:

The underlying thought is that the legitimate concern of the Bill is to protect academic freedom expansively, to symbolically reinforce that that is the case, and to provide new mechanisms to deal with disputes. Everybody who is interested in academic freedom would say that it is in law and we should be protecting it, and that is being driven by the fear that there is overcreep from the side that wants to take away academic freedom. In terms of how you implement that, if you say, “Let’s defend lawful speech because lawful speech is free speech, and lawful speech is academic freedom,” that sounds very good, as long as you can answer the question: is all lawful speech something we want to defend as academic freedom, or are there categories of lawful speech that we do not want to defend?

Most racist and antisemitic speech does not meet the legal threshold of being unlawful. Intimidation and violence are unlawful, and other forms of stirring up are unlawful, but holocaust denial is not unlawful. We may wish to stigmatise it—we would not want it on our charity board or in our political parties, but different institutions have different rules. In this case, what are the principles and categories by which we might say that there is a form of lawful speech that we should not be protecting under academic freedom because it is inimical to academic freedom? That is the tension.

For example, if the Government say to universities that they should adopt the International Holocaust Remembrance Alliance definition of antisemitism, that is an important thing to do for antisemitism. There are two reasons to do that: one is symbolism—antisemitism is bad—and the other is to prohibit on campus speech that is currently lawful but also antisemitic. Comparing the Israeli Government to Nazi Germany, for example, is a lawful position that we wish to stigmatise. If you have this measure and the IHRA definition, you have potential tension at the boundary between the lawful speech that you are trying to exclude and the lawful speech that you are trying to protect.

Photo of Matt Western Matt Western Shadow Minister (Education)

Q Briefly, what sort of impact do you think this is going to have on student unions?

Sunder Katwala:

With student unions, it is there to push back against not inviting, disinviting or protesting against someone whose political views you do not share. Wide boundaries are good, but are the boundaries of lawful speech exactly the boundaries you want to protect as academic freedom, or are there some hard cases? I will come on to this, but I think there are probably three different sets of hard cases where the boundary gets complicated.

Photo of Matt Western Matt Western Shadow Minister (Education)

Q You said you can imagine cases of hypothetically cancelled speakers claiming or pursuing hypothetically lost fees. Will you explain that further, and what amendments would you like to be made to the legislation in order to combat it?

Sunder Katwala:

What I am not clear about at this stage concerning the legislation, the principles, the operationalisation and so on is how far these things are going to be broadly symbolic—so that they are just there—or how far it goes. What are the damages? If I am disinvited because I am David Irving—I have published a book and then I was disinvited because people read the High Court judgment—what is the material loss to David Irving? I suspect that it is quite small, but we do not know. That is the level of detail that the legislation does not take us to.

Photo of Matt Western Matt Western Shadow Minister (Education)

Q Could that include reputational damage?

Sunder Katwala:

Yes. Mr Irving has a very low reputation, because the High Court has said what it said about him, so him not being allowed to proceed with his event at the University of Cambridge and so on would add to the reprehensible reputation of a man with an already low reputation. There might be other cases in which somebody loses significant amounts of reputation by being cancelled for the first time. This is a level of operational detail that, obviously, I do not think that the legislation is designed to get to. What are the scales of these kinds of interventions?

Photo of Matt Western Matt Western Shadow Minister (Education)

Q I am interested in your view of how this will interface with the proposed online harms Bill. Do you have any thoughts on that?

Sunder Katwala:

The online harms Bill has the opposite principle—again, it is a good principle—which is that there is some lawful speech that is reprehensible and we wish to stigmatise it, even though it is lawful. The example that I put to one of the social media platforms was, “No blacks in the England team—keep our team white.” It is lawful, reprehensible racist speech. It is also within the rules of Twitter, Facebook and Instagram at the moment, and they are embarrassed about that and looking into it. I feel that an event at a student union, “No blacks in the England team—keep our team white,” does not seem to be the kind of event that we want to protect, and yet that is lawful but reprehensible speech, which we want to stigmatise, even though it is free speech within the law.

If I sit in my living room or go to the pub and say, “Marcus Rashford isn’t English—keep our team white,” I am not breaking the law. I might be if I put it on the internet in particular ways, but I am not in that case—I have not hit the threshold for racist abuse. If I sent it to him with the wrong kind of epithets, maybe I would. This is a question of wide boundaries for sure, but are there hard cases for how far those boundaries go?

Photo of Matt Western Matt Western Shadow Minister (Education)

Q You heard the previous session. There was a lot of talk from the previous two witnesses about self-censoring and so on. Do you share those concerns, or do you think, as I was perhaps suggesting, that we all self-censor to a certain extent? As we heard from a witness last week, that is just the way of the world—you get on with it and you make your case.

Sunder Katwala:

The harder question about self-censorship is: what will these mechanisms do about self-censorship? They might change the culture in a very positive way, because everyone feels reinforced and is not worried about stigmatisation, but they might change the culture in a rather negative way, where everyone is bringing cases and counter-cases against each other, and the processes, the punishment, could get worse if we have a lot of tit-for-tat things. There might be something in the culture of a regulator about the treatment of, say, vexatious cases as opposed to substantive cases, which might be quite important if the stress actually comes from the possibility of the cases. Because self-censorship and chilling effects are cultural points, it is not obvious to me that we know how these mechanisms affect that broader cultural plane.

Photo of Michelle Donelan Michelle Donelan Minister of State (Education)

Q Your recent research suggests that more divisive voices and controversial issues are often amplified online. Do you agree that that influences how freely the majority of people feel able to express themselves?

Sunder Katwala:

On the whole, in terms of the British public and the general population, these current issues of free speech and academic freedom are important issues in our political and media culture and so on; they are not gripping the broad public. It is a much less heated and polarised debate about these issues in Britain than in the United States of America. It might be the case that in five, 10 or 15 years, we have a much more heightened culture, but there is a very broad balance, a middle, in British society. When we have engaged in conversations about the worry about people being called racist before they have been racist, but also about wanting decent debates about race and integration that do not cross boundaries, a great many people are trying to strike those balances in a way that is good for freedom of speech but has boundaries.

A lot of people think political correctness can go too far if you take it too far, but they will then say, “But it had a point in the first place.” To give an example, research by More in Common found that seven out of 10 people in this county think that political correctness can be a problem if you overapply it, overreach with it and go for trivia. Seven out of 10 people think that hate speech can be a problem, because we are letting too much go. The median person in Britain thinks that both those things are true. At the same time, they are probably frustrated that we are removing episodes of “Fawlty Towers” from archives. It is entirely trivial, while we are letting neo-Nazi content run riot on Facebook. There is awareness of this tension, and frustration that you could overreach in different directions.

What is much more the case in America is that people have picked a side. Therefore, they are always on one side of every question. We definitely have the possibility of having that culture among the most politically engaged—the people who spend most of their time on the internet, and perhaps the people who write the most newspaper columns—but most people are quite frustrated with that, because they would see that there are good public goals here that might be complicated to get right.

Photo of Michelle Donelan Michelle Donelan Minister of State (Education)

Q I will ask just one more question, because I know that a number of Members want to come in. Do you agree that it is important to create an atmosphere on our campuses whereby difficult issues can be openly discussed, to create the critical thinkers of tomorrow?

Sunder Katwala:

Completely, yes. It is the question of whether there are any boundaries where you would be allowing reprehensible content that undermined academic freedom, liberal democracy or the role of the university, if you did not get those difficult cases right.

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown

Thank you very much for your evidence. I should declare my interests, as I have done in previous sessions—Sussex University, the University of Bradford and the University and College Union.Q

Is there a problem that expanding this to student unions might have detrimental effects? Student unions traditionally allow students to self-organise ginger groups, different political groups and so forth. If you require the Conservative club to enforce academic freedom, does not that make a mockery of having a club of Conservatives in which they can talk and debate issues among themselves?

Sunder Katwala:

In principle, I do not see why it should do so—unless you have organisation of it wrong. As I see it, the principle is that the Bill should protect the difficult conversations that different people want to have. In theory, it should be blocking people saying, “I don’t like you saying that about Winston Churchill or the British empire—that’s too tough,” as well as stopping other things. But the devil is in the detail.

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown

Q Our last witness, Matthew Goodwin, said that he wants the Bill to stop people making a mockery of academics. Last week, Dr Ahmed said that he wanted the Bill to allow him and his colleagues to be able mock religion and different people’s ideas, and Trevor Phillips said that he wants the Bill to stop people calling him racist on campus. Is this a Bill in which everyone has put their desires but which does not actually fulfil any of them?

Sunder Katwala:

Mocking academics is part of free speech, so I do not think the Bill will stop people mocking academics.

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown

Q Exactly.

Finally, I want to talk about self-censorship. According to Facebook, 71% of its users self-censor. The UCU study says that only 35% of academics self-censor, and the King’s study says that, among right-wing academics, the figure is only 32%. Would that be evidence that, actually, right-wing academics are the least likely to self-censor and there is no problem?

Sunder Katwala:

We are looking for cultural change whereby we have more confidence in having difficult conversations. The way to do that—I have tried doing this, and it is quite an interesting thing to do—is to say to people, “Give me a list of things that you think we can’t talk about any more. Let’s stay in the room and see whether we can have a conversation about them.” I have a concern: do we have that conversation with the right boundaries and the right culture? This is where I think people are balancers on these issues.

For example, people think there is a view about language that we do not want to use and there are labels not to use about people. Political correctness has civility and kindness, and it has a value for people, but when it is a code and you did not get the memo last week and now you are on the wrong side of it, people get a bit worried about how fast it moves.

I am not an expert on this, but, for example, people find this with debates about gender and sexuality. They know that we have changed our minds about the way we treat gay people in our society, but they find that very confusing and they do not know where to go to have that conversation and ask people about that. It is that navigation. Maybe we should be putting more emphasis into seeing how we have these sites of constructive engagement with difference, rather than having a regulatory process about who do you want to fine.

Photo of Lloyd Russell-Moyle Lloyd Russell-Moyle Labour/Co-operative, Brighton, Kemptown

Q Finally, what you have just explained seems laudable and admirable, and what I want every university to be doing. Just so we are clear: are you saying that providing a legal tort process could actually undermine the ability to get people around to have a decent conversation, because they will be running to the courts?

Sunder Katwala:

We do not know what the cultural impact of that will be, and whether that will be weaponised or used sensibly. I think the culture of the regulator in dealing with vexatious cases will be quite important. We see it in the sector of charities now and other things; we probably see it in politics, as well. If you create a regulatory thing, then people want to use up the time of people they do not like by reporting them to things. Pushing back against that, while doing the job it is trying to do, is important.

Photo of John Hayes John Hayes Ceidwadwyr, South Holland and The Deepings

You do not work at a universityQ and you are a journalist by background, are you not?

Sunder Katwala:

I have worked in think-tanks, journalism and so on.

Photo of John Hayes John Hayes Ceidwadwyr, South Holland and The Deepings

Q The previous witness said that no one who had not worked in a university could quite understand both the climate of fear and the culture of silence that prevails in many universities. Do you think you are better placed to make a judgment about that than someone who works in a university or not?

Sunder Katwala:

No, I am not. I am not trying to bring you evidence on that. At the level of public policy, we are trying to decide on the principles we should be legislating for in our country, about where is the expanse of free speech we want to protect and where are there dangerous misuses by people who are claiming to use free speech to do something to undermine liberal democracy. That is my work. I am not telling you what is going on in universities.

Photo of John Hayes John Hayes Ceidwadwyr, South Holland and The Deepings

Q In common with my colleagues, I have to declare my entry in the Register of Members’ Financial Interests: I am an academic at Bolton University.

The point you are making is that some speech should be prohibited that is legally lawful. Who would arbitrate that? Would it be university authorities, Governments or the mass of students? Once you get into the territory that you are describing, which could lead to a liberal tyranny, as I am sure you appreciate, who is going to decide what is acceptable or unacceptable, if it is not the law?

Sunder Katwala:

All sorts of institutions make these decisions. The Labour party, the Conservative party and the Democratic Unionist party make these decisions. They prohibit people from saying things that are lawful and reprehensible. Newspapers make these decisions about lawful speech. As I say, social media companies are coming under more pressure. What should happen in the universities? Let me give you the three case versions that I think you should examine.

One is where the content is directly discriminatory: this would be the clash with the Equality Act. If somebody said, “Let’s have a lecture on how women are not fit to study maths and sciences,” and they brought the Taliban over to advocate their view on that, you could say, “Let’s just stand up and tell them that’s wrong.” Fine, we could do that, but, as with the Government’s position on antisemitism, there might be some kinds of versions of that—like no gays, Jews or blacks on campus, or whatever—where the responsibilities to treat students equally might be undermined.

My second category would be where people are advocating against academic freedom. If I held a campus event called “The burning books party” on 5 November, I might be burning the books that Hitler burned or burning “Mein Kampf,” but burning books or advocating the burning of books is against academic freedom. Should we have that debate? Clearly, burning a book is, in a sense, freedom of expression of a particular kind, but I don’t think we would invite people to have bonfires of books on campus. Would that be a public order offence or not? There might be an argument saying, “There are some books we should ban,” or “Women should not be allowed to write books. My vision of society is ‘The Handmaid’s Tale’.” That is a stupid view, but it is a lawful view. Are we protecting that as academic freedom?

My third case would be very extreme conspiracy theories. Here we have a real dilemma. We know about Galileo, Darwin and so on, but when it comes to 9/11 “Truthers” and people who have David Icke’s view of covid—that it does not exist anywhere; it is just a plot by Bill Gates—where is the balance between the sunlight on that being right and the expression of that view? These things blend into each other. Why is there a conspiracy theory?

Those are the categories where I think that you need to think about whether there are versions of reprehensible but lawful speech that are inimical to academic freedom rather than needing to be protected as academic freedom. The Government have taken that position on holocaust denial, as I understand it, but they have not outlined a set of principles on what is wrong with holocaust denial. How does that relate to the denial of other genocides? How does that relate to the identical position of other minority groups who are not Jewish?

Photo of John Hayes John Hayes Ceidwadwyr, South Holland and The Deepings

Q I just want a straightforward answer, really. You are right, of course, that many things are offensive, rude or unsavoury. Indeed, some things are alarming, shocking and disturbing, but some things that are alarming, shocking and disturbing should be said because innovators have done that through the ages. Copernicus was alarming. Darwin was certainly alarming and shocking to many people—pretty shocking to me, actually. Having said all that, you have not really been clear about who determines what is lawful but prohibited. Is it the university?

Sunder Katwala:

Is it the vice-chancellor? National Action has now been proscribed, but a very violent, aggressive group such as Britain First has not been, and the Islamist equivalent of such groups. Most people have different views about these different groups, but do you give Hizb ut-Tahrir, a group whose sole existence is to undermine liberal democracy and academic freedom, the floor and argue against it, or are there some versions of the content where you draw the line, either because of—

Photo of John Hayes John Hayes Ceidwadwyr, South Holland and The Deepings

Q Sorry to interrupt you, but I want to get to the bottom of this. The vice-chancellor in a particular university, or the university management, would determine what was unacceptable but lawful.

Sunder Katwala:

Or it might be a national policy. In the case of holocaust denial, it will be a national policy that the lawful speech of holocaust denial will not be welcome on our campuses. The Government have taken that view. Do the Government want to protect 9/11 conspiracies as academic freedom or not? Do the Government want to take a view, or does the vice-chancellor take a view? It is up to the Government first—

Photo of John Hayes John Hayes Ceidwadwyr, South Holland and The Deepings

Q So it is the Government who determine it, not the vice-chancellor.

Sunder Katwala:

It would depend. The Government will decide in the case of holocaust denial that it needs to be very clear that it is not welcome on campus. I am saying that there are analogous cases to holocaust denial for other reasons, for other minority groups.

Photo of Kevan Jones Kevan Jones Llafur, North Durham

Q On that point, it is quite clear in the legislation who will decide: it will be the director of free speech, whose decisions are not even legally challengeable. To me, that is very clear.

I know that in the modern-day Conservative party there is a lot of political cross-dressing going on, but what I find quite frightening about the legislation is that one individual, or a future Government of any persuasion, will have a very Orwellian view of deciding what is and is not acceptable. That is a great departure from my usual understanding of what traditional Conservatives have argued for in this place over the years. Would you say that that one of the problems of this is that the final arbiter will be a political appointee?

Sunder Katwala:

I think that there are risks if it is the whims of an individual. We will have to have a clear framework. Say we create an event titled “Are there any limits to free speech?”—I remember people used to create that event when I was an undergraduate student—and we say, “We’ll be joined by the Taliban, David Irving, Anjem Choudary and Zhirinovsky of Russia for that debate about whether there are any limits.”

The question then for the Government, the regulator or the vice-chancellor is to say, “Is that a jolly good way to establish the debate? There are some risks of Anjem Choudary because we know that he radicalises a lot of people towards terrorism, but he dances within the law,” and so on, or is that a kind of lawful speech? I would not have that in my charity. I would have a very robust debate, but I would not have it with Anjem Choudary and Britain First. Are we going to say to universities, “You can’t make any of those choices about the boundaries within your expansive protection of free speech”? That is the key practical question.

Photo of Kevan Jones Kevan Jones Llafur, North Durham

Q I agree, but the danger in the legislation as it is written is about those individuals. My concern is more that foreign states that want to change the direction that we argued for on freedom of speech in this country will use this to challenge academic institutions, and will be allowed to.

I mentioned earlier the issue of the operation in our universities of the United Front of China. They will be able to take cases and argue them and no doubt they will be well financed. There is a danger that they will use it to get their own way through their very deep pockets.

Sunder Katwala:

You are going to have to have a transparent policy on which cases are decided. That is where my principles are about “What can you say about gays, women or Jews?” and “What can you or can’t you say about the lurid conspiracies that don’t seem to have any value to academic freedom?” How do you deal with those tensions?

Photo of Richard Holden Richard Holden Ceidwadwyr, North West Durham

You have raised three interesting points at the margins. The entire point of the legislation is that there are things that are not in these extreme examples that are currently being challenged at universities. That is basically the evidence that we have received from the academics who have appeared before us in these evidence sessions.Q

In light of that, do you not think that any Government in a liberal democracy such as ours would find that those three specific issues––clashes with the Equality Act, those advocating against academic freedom and those with very extreme views that they try to cover with academic freedom––could easily be contained within that direction of free speech, thereby ensuring what we all want: the extension of free speech by the academics who tell us that they are mass self-censoring now, so that the professors who just appeared before us can be allowed their academic freedom? We are actually protecting the freedom of perfectly reasonable people, not people who are doing the things that you suggested. Do you see where I am coming from?

Sunder Katwala:

In principle, I think the approach you have is very good. We have been having this debate about free speech on campus in society more broadly for several years and we never really get to the difficult issues.

What I would like is for people on both sides of the debate––there should not be sides––to look through the other end of the telescope. If you are someone who is very worried about racism and hate crime, you have got to be clear about the robust, tough stuff that you are going to allow so that you can be clear about where you draw the line.

The liberal or left side of the debate has a reputational point. The people worried about the incursion of free speech have not yet gone to these hard cases and said, “That is what we would do on this boundary, this boundary and this boundary.” If, instead of always just using their overall slogan, the two sides engaged with the value of the point on the other side, we would actually get to the hard cases.

Photo of Richard Holden Richard Holden Ceidwadwyr, North West Durham

Q I get where you are coming from. Where do you come down? Do you think this legislation is unnecessary and that we should just trust the academic institutions as they are now or do you think there is a place for the Government to do something in this space?

Sunder Katwala:

I do not have a very strong view on that. I think the Government want to symbolically commit to things that are already the case. It is creating new mechanisms and I do not know whether the new mechanisms will create a worse or a better culture.

The mechanisms are clearly the new thing: the responsibility is already there. Amplifying the responsibility is good, but we will do it by creating spaces in which we show that you have robust, difficult, democratic conversations but with boundaries.

Photo of Richard Holden Richard Holden Ceidwadwyr, North West Durham

Q I understand. You are ambivalent in a way about whether the legislation is the best way to go.

Sunder Katwala:

I think there are risks about having a set of mechanisms that tie up a lot of people’s time. What is the gain of that? I am not giving a strong view.

Photo of Richard Holden Richard Holden Ceidwadwyr, North West Durham

Q Do you accept that there are risks from the other side at the moment of not pushing on with what we are doing?

Photo of Richard Holden Richard Holden Ceidwadwyr, North West Durham

Q Finally, one of the things that Mr Jones and I tend to agree on is the concern around foreign states and foreign state actors. Although you are not an academic yourself, do you accept that there is a danger of academics in UK academic institutions not saying things because of the enormous financial impact that some of these foreign states, particularly the People’s Republic of China, have in the UK?

Sunder Katwala:

I am not an expert on that question, but I can see why you would ask it. The thing to worry about with campus culture is that, having made the very positive decision to welcome Hong Kongers to the UK, many of whom will be students, and having a very large number of Chinese students in the UK, which is a positive thing I am sure for universities, there will be more of a challenge to be proactive on the culture of student debate and so on, so that we do not have tensions on campus between those groups.

Photo of Richard Holden Richard Holden Ceidwadwyr, North West Durham

Q Perhaps that is a reason, given the extra pressure facing the universities at the moment, to allow the legislation to come forward and for a Government body to help them in that very difficult potential situation.

Sunder Katwala:

I think that is about the culture of campus, the safety on campus, as well as the principles. It is the chilling effects. There will be more of an issue there about the potential Hong Kong-China political views that different people have for different reasons.

Photo of Christopher Chope Christopher Chope Ceidwadwyr, Christchurch

I am sorry, but we have now reached the end of the time allocated for this session. Thank you very much, Mr Katwala, for your evidence and for the help you have given the Committee. We now move on to the next panel, please.