13 July 2021

How ‘status quo Labour’ have dealt the Tories a winning hand

By Andrew Tettenborn

There’s a skill to running an opposition party that goes beyond looking at any government proposal and saying, after Groucho Marx in Horse Feathers, “Whatever it is, I’m against it”. Happily for Boris Johnson, though not for the health of our democracy, no one seems to have told the Labour Party.

One instance came with Boris’s plan to open up fully next Monday, which is good but – as many lockdown sceptics have noted – by no means perfect. In reacting to it Labour had lots of choices. They could have welcomed the scheme, but demanded clear and effective measures to protect the vulnerable. They could have said that removing restrictions was fine, but only if there was a speeding up of non-Covid appointments to clear the immense backlog that has built up since February 2020. They could even have said Boris hadn’t gone far enough, and pointed out the lunacy of advising bus companies to insist on social distancing by those on their way to jam-packed nightclubs. Instead, we simply had a vague note of dissatisfaction combined with demands that increasingly pointless restrictions go on indefinitely. Labour thereby showed itself as the party of the status quo (more on this below).

Then there was the opposition’s performance over the Higher Education (Freedom of Speech) Bill, which received its second reading in the Commons yesterday. This legislation, which was introduced following a series of episodes where speakers have been no-platformed, and – perhaps more importantly – where students and others have faced disciplinary proceedings from universities for speaking their mind in an entirely lawful way, does a number of things. Supplementing a hitherto rather ineffective duty under a 1986 statute, it puts explicit duties on both universities and student unions to take all reasonable steps to promote free speech on campus; it binds them to protect academics’ free speech within their area of expertise; it forbids them to deny the use of facilities to anyone, or any group, on the grounds of ideas, beliefs or views; and it requires universities to take part in a complaints scheme run by the Office for Students. It also allows institutions to be sued for damages if they don’t follow these duties.

It wouldn’t have been difficult to come up with a decent opposition strategy here. In so far as any bill is welcome that reduces the effect of the dead hand of bureaucracy in universities and allows people to say what they really think, it is obviously a good thing. But there are a fair number of criticisms that can be made, and big scope for suggesting things that either should be in the bill but aren’t, or that ought to have been done differently.

What about, for example, a specific prohibition on disciplining a student for any lawful view expressed in a class? What about limits on the power of universities to impose contractual limitations on the views and opinions that can be expressed by students and faculty off campus, or on their power to introduce rules penalising any speech that is seen as contrary to the values of the institution or apt to bring it into disrepute? (Both these are big bones of contention and have given rise to difficulties). What about the disciplinary proceeding itself?

Due process is very often spectacularly lacking; but the bill says nothing about it. If a student society is faced with a university administration that refuses to allow a particular meeting on what it sees as inadequate grounds, should it not have a fast-track procedure to decide who is right, rather than a mere right to complain with a possible determination in its favour weeks or months later when everyone has forgotten about the affair? And so on.

It’s the job of a competent opposition to make points like these. But Labour once again didn’t see it that way. Over the weekend the party simply announced that it was whipping its MPs to resist the Bill in its entirety. Why? Because, while free speech was all very well, the bill might give aid and comfort to people who wanted to express undesirable views to be expressed – Holocaust deniers, or anti-vaxxers, or “conspiracy theorists” or views “harmful to the public interest”. And this, the official line went, wouldn’t do at all. As a result, Labour has now come out as the party that not only won’t trust you if you’re not wearing a mask, but doesn’t like the idea of people expressing views it might disagree with.

What has happened here? It’s partly that Labour has forgotten that freedom of speech includes freedom of bad speech, and also that views contrary to the public interest today may become mainstream tomorrow, or at least mainstream arguable: witness in the last year or so lockdown scepticism, or criticism of WHO guidelines on Covid.

However it’s deeper than this. It’s also that Labour seems to have forgotten how to oppose in such a way as to persuade people to vote for it. If the party had asked lower middle class non-metropolitan voters with children at university whether they thought their offspring should be allowed to say what they liked there without being disciplined for being, say, transphobic or offensive to some interest group, there’s little doubt what answer they’d get.

But it didn’t. Instead the inference is almost irresistible that it simply, as it were by inertia, went along with its urban, more intellectual, supporters whose views its senior members largely share. It is no coincidence that senior lawyers (today predominantly anti-Tory) and academics (overwhelmingly Labour-leaning) were almost unanimously against these proposals, seeing them as simply causing trouble and making administrators’ jobs more difficult, and in many cases refusing to accept that there was any free speech problem at all. So too with Universities UK, the trade body for senior university management and administration (also largely from the professional Labour-leaning classes), which saw little more than extra bureaucracy and the prospect of having to fight “frivolous claims”.

Covid rules and free speech on campus are two cases. But they show something very interesting: a curious role reversal between the Tories and Labour in the course of a couple of generations. In the 1950s and 1960s Labour was the natural home for free thinkers and radicals; the Conservatives for slightly stuffy “don’t rock the boat” establishment policies. But no longer. Today it is Labour which more and more represents the interests of the entitled administrative class, whether in SAGE, in university quadrangles of power, or elsewhere. Labour is now overwhelmingly the party which, when it sees legislation which might threaten the way that class does things, can think of nothing better that calling atavistically for “no change”.

And, of course, this is exactly what the Tory party should be capitalising on. It is (or should be) shouting from the rooftops that it is the party of the person who thinks for herself in a red wall seat like Bishop Auckland or Darlington, or the small man in Brighton who’s sick of the conformist culture of the urban professional class. Put bluntly, the Labour Party has put a card in the hands of the Tories that, played rightly, could be a winner for some time to come.

Click here to subscribe to our daily briefing – the best pieces from CapX and across the web.

CapX depends on the generosity of its readers. If you value what we do, please consider making a donation.

Andrew Tettenborn is Professor of Law at the University of Swansea. He specialises in private, commercial and maritime law

Columns are the author's own opinion and do not necessarily reflect the views of CapX.