Andrew Tettenborn: The Welsh Government’s flawed “anti-racist” instructions to local authorities

4 May

Andrew Tettenborn is a professor of commercial law and a writer.

Wales is an attractively heterogeneous nation whose people – unlike, at times, its politicians – generally get on well. This isn’t to deny that there are incidents of racism and racial mistreatment – too many, as anyone who has been out on a Saturday night in Cardiff or Newport can confirm. But most of geographical Wales has a remarkably low proportion of ethnic minorities, and little evidence of deep-seated racial problems.

Unfortunately the devolved government under Labour First Minister, Mark Drakeford, prefers a rather more dismal point of view, at least according to a report released just before the pre-election purdah. Using the reaction to the George Floyd incident as a springboard, it unambiguously dubs Wales an institutionally racist principality in the business of oppressing ethnic minorities. Only an insistence on positive anti-racism from everybody in the public sector and beyond can tackle this. Non-racism is not enough. We are all apt to be unconsciously racist whether we know it or not. “The deleterious impacts of racism,” we are told, “have persisted because being non-racist is not an action-oriented state.”

There is a great deal more of this type of guff in the report, which runs to something like 140 pages. It is also full of predictably flatulent but ultimately vacuous prose (“identify the lived experiences of ethnic minority people in the Welsh Government and ethnic minority communities in our stakeholder groups to identify the change we need to take to become an anti-racist organisation …”). But unfortunately you can’t simply dismiss it as hot air. There are all-too-tangible proposals to racialise the way in which Wales is run.

Public sector chiefs, for example, must be set targets for ethnic minority employees, and all interview panels must include non-white representatives. Performance management is to include anti-racism zeal; micro-aggressions everywhere must be suppressed. Elected councillors will have to sign up to being anti-racist as a matter of standards; indeed, introducing racial quotas for local government elections should be seriously investigated. Medical staff and students must all have compulsory anti-racist health education. Workers in social care will be trained in the “lived experiences of Black, Asian and Minority Ethnic people”, “cultural competence and reflective practice”, and intersectionality. In schools, the compulsory Curriculum for Wales will include “Black, Asian and Minority Ethnic stories” and also “understanding of anti-racism, and the confidence and ability to challenge harmful norms.”

It goes on. Tourism marketing must be “anti-racist” and “truly reflect the true depth of our diverse cultural heritage, while avoiding stereotyping and cultural appropriation;” the effects of slavery and colonialism need dealing with. Museums (sorry, “cultural collections”) must promote “innovative and engaging experiences relevant and relatable to Black, Asian and Minority Ethnic communities.” Hate crime laws need extending, and “online racist hateful attitudes” countering.

It’s not hard to see what is wrong with proposals of this sort. For one thing, the report’s repeated use of words like “lived experience”, “white privilege” and “structural racism” indicates a fairly uncritical acceptance of, and intent to impose, willy-nilly on people in Wales, the American teachings of Critical Race Theory of about 20 years ago, despite these being, to say the least, controversial and certainly not reflective of mainstream thought. For another, one suspects many of the ideas emanate from the metropolitan elite in Cardiff, with its ethnic population of around 20 per cent compared with the average in most of rural Wales of between two and three per cent.

Concentration on “micro-aggressions” at work threatens to make any kind of workplace interaction a free speech minefield. The proposal to update hate crime laws is ominous, as shown by recent experience with the Hate Crime and Public Order (Scotland) Act 2021. The idea of introducing racial quotas for local government elections is frankly chilling. And this is quite apart from the sheer diversion of public money, time, and resources that could be devoted to something more worthwhile that would actually help the people of Wales.

Moreover, efforts like this to racialise Welsh public life are likely to have more subtle effects too. An uncomfortable proportion of Welsh employment comes from the public sector; and as soon as measures of this obtrusive kind becomes embedded in hiring and employment, recruiters, managers and employees will play safe. Appointees will increasingly obtain jobs on the basis, not of flair or intelligence, but of boxes ticked and perceived fairness and equality. Having been hired, moreover, they may well regard it as more important to avoid trouble than stick their neck out or say anything out of turn. Standards of service, especially to those least advantaged, will suffer.

Of course, all this may not happen. The racism report is very much a Labour project. Though the scattering of Plaid politicians left in some of the more woke urban centres might support it, few if any Conservatives will have much time for this kind of time-wasting nonsense. One also imagines that voters in the poorest left-behind areas such as Wrexham and Rhyl would regard it with blank incomprehension.

Elections to the Welsh Assembly are on Thursday. These proposals could possibly end up gathering dust for some little time.

Andrew Tettenborn: Protecting free speech at universities. The Government’s proposals are a start, but don’t go far enough.

5 Mar

Andrew Tettenborn is a professor of commercial law and a writer.

Politics is a bit like big game hunting. If you have a beast you want to bring down, as often as not you only get one shot at it before events move on. This is exactly the case with free speech in universities. The Government has commendably committed to legal reforms to ensure that students, student societies and professors have the right (and also the practical ability, which is not quite the same thing) to say what they like within the law. They must now get it right.

The present duty to respect free speech within the law, introduced by Margaret Thatcher in 1986 to deal with student mobs preventing (normally Tory) MPs from speaking, sounds good. University administrators can (and do) sanctimoniously trumpet their support for it; so also do bodies like the Equality and Human Rights Commission in its advice to colleges.

But it doesn’t actually work very well. Universities still regularly maintain blanket bans on speech that is sexist, racist, homophobic or whatever. Take a lecturer hauled before management for liking a Tweet, signing a letter or making a statement on social media. It’s often discreetly made clear that if they don’t tone down their comments they won’t be promoted and may be first in the queue for redundancy, and there’s not much they can do.

If a student society is denied a platform or booking (or registration with the SU), the prospect of being told that it can, at vast expense, seek an injunction or a judicial review is hardly very comforting, or very effective at making sure it is actually able to make itself heard. Again, if a class of students is threatened that what they say on Facebook may lead to disciplinary proceedings if it causes outrage to an interest group, they are most likely to hunker down. And so on. Things aren’t right.

The Government plans to do four things. It will extend the duty to respect free speech to cover student unions (which control many facilities available to students) as well as universities. It will make universities’ registration and entitlement to registration conditional on such respect and allow support to be withdrawn if it is not present. It intends to ensure that all academics’ contracts protect their right to engage in free speech within the institution without fear for their employment and promotion prospects; and it will give a legal right to students and academics to sue for damages if their right to free speech is wrongly curtailed.

This is several steps in the right direction. The prospect of liability in damages and loss of government support has a wholesome ability to scare university bigwigs, with their inflated salaries and their view of themselves as captains of industry and the institutions they run as profit centres. And the strengthening of academics’ contractual free speech rights within the institution can only be an advance, especially for younger teachers faced with overbearing administrators (sorry: line managers) threatening disciplinary proceedings.

But these proposals probably don’t go far enough. The Free Speech Union has been concerned with this issue ever since its foundation, and has considerable experience in dealing with such problems on the ground. And while as an organisation it has not stated any formal position on these plans, informal soundings among a number of people connected with it have shown widespread agreement that at least three further things remain to be done.

First, internal free speech is all very good; but we need for a degree of protection for academics’ lawful extramural political speech as well. Except where their pronouncements can be proved directly and substantially to damage a university’s interests over and above its general desire to protect its reputation, institutions should be forbidden to interfere with what they say in a private capacity. If complaints are made to a university by third parties about what one of its academics has said (an increasingly common way of silencing people these days), it should at the very least be under an obligation to stand back and decline to get involved.

Second, any protection for free speech is apt to be undermined by an insidious provision in the Equality Act 2010 (s.26, since you asked), outlawing any conduct seen as violating any other worker’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. It needs to be made clear that in so far as speech is protected as free speech, this provision does not apply. A university must not be allowed to take away with one hand what it has given with the other.

Third, we must not forget students. They need specific protection for their lawful political speech, both within and outside the university. Even where posts on social media cause controversy or prove offensive to other students, they should not be able to be made the subject of disciplinary proceedings under speech codes or other regulations.

One more thing. To cement the protection of free speech and deal with the problem of selective “no-platforming”, in my view there is a need for yet a further provision. Universities and student unions, in so far as they make rooms and other facilities available to student bodies for meetings and talks, must be specifically required not to discriminate on the basis of the views held by such bodies or likely to be expressed at the event, unless they can show that such views are actually unlawful.

In other words, if an institution chooses not to allow political meetings at all on its premises, that is fine: as a private, albeit charitable, organisation that is its prerogative. But if it chooses to permit them, it should not be permitted to be selective in the views it allows to be expressed.

As we said earlier, the Government has a wonderful opportunity to preserve freedom on university campuses. But it’s one that, given the ways of politics, may not present itself again for some time. Gavin Williamson can’t afford another reform that goes off at half-cock. We must do things properly this time.