Higher Education (Freedom of Speech) Bill
Monday 12th July 2021
(3 years, 5 months ago)
Commons ChamberRead Full debate Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts
21:50 - The House divided: - Ayes: 216 / Noes: 367 - Question accordingly negatived.
Madam Deputy Speaker (Dame Eleanor Laing)
I should report to the House that the reasoned amendment in the name of the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) has been selected.
The Secretary of State for Education (Gavin Williamson)
I beg to move, That the Bill be now read a Second time.
I wonder how many of us here ever pause to reflect on how very fortunate we are to be able to do what we are doing right now—discussing freely a subject that many of us will feel passionate about. I suspect that most of us accept without pause that this is what democracy is all about. In short, we take freedom of speech and open debate for granted. Nothing that is precious in life should ever be taken for granted.
The privileges that we are enjoying today and that underpin any successful democratic society are essential and fundamental to a free and liberal society. Genuine academic freedom has long been a cornerstone of our world-leading universities. Their mission to stretch the boundaries of human learning, knowledge and wisdom was only possible because they were free to challenge the views of the time. Without their courage and without the bravery of those who defended their right to speak out, the world would be a much darker place today. Those challenges—those dissenting voices—have not always met with approval or agreement at the time. Some paid dearly for their intellectual independence. Take those trailblazers who argued for gay rights or women’s suffrage, or Charles Darwin, whose theory of evolution was considered blasphemous and deeply offensive by many but which we now accept as simple truth.
One reason why students from all over the world flock to our universities is they know—or expect—that they will not only get a first-class education but hear a broad range of views and opinions. Academics, whom our outstanding universities similarly attract from a global talent pool, expect to be able freely and fiercely to seek out the truth. What they do not expect and should not tolerate is being prevented from hearing those views or even being silenced themselves. Freedom of speech is a fundamental right in any civilised country but especially for students and faculty in higher education, which has always been a crucible for new ideas and ways of looking at the world. Staff and students should be free to discuss, debate and debunk other views.
Fear of censure is deeply saddening and has a chilling effect and spread on campuses. There continue to be too many reported instances where students or staff have been silenced or threatened with a loss of privileges or even dismissal for airing views or opinions that others disagree with. I have previously spoken about how that growing intolerance cannot be allowed to take root and I made it clear that if universities would not protect free speech, the Government would.
I turn to the reasoned amendment, which Mr Speaker has selected. The Government have been clear that the Bill protects lawful speech only. Unlawful speech on campuses will not be tolerated. To be clear, nothing in the Bill encourages higher education providers or students unions to encourage baseless or harmful claims or bad science on campus. We should be proud of our life-saving covid-19 vaccine roll-out, and we are pleased to see that more than half of 18 to 24-year-olds have already received their first dose.
Mr Jones
It is the right hon. Gentleman. I agree totally about freedom of speech, which is one of the best things about this country and one that I am proud of, but what data is the Secretary of State using? If he looks at the Office for Students’ data for 2017-18, he will see that the instances he referred to amount to 0.009%. In an entire year, there were 17 cases among more than 500 academic institutions. What data is he basing his claims on?
Gavin Williamson
I apologise for causing such offence to the right hon. Gentleman by referring to him as “the hon. Gentleman”. It was not right to ignore the fitting status that he holds in this House. I am sure he will not take too much offence by that. In terms of what we are tackling, we are talking about principles and the need for people to feel able to speak freely and challenge ideas. One of the great challenges we face on campuses up and down the country is that so many people are concerned they cannot speak out and give their views because they may be censured by those academic institutions.
Mr David Davis (Haltemprice and Howden) (Con)
In response to the point made by the right hon. Member for North Durham (Mr Jones), had Darwin been suppressed, that would have affected 0.0001% of debates, but it would have changed the course of history.
Gavin Williamson
My right hon. Friend is absolutely right. So much of the legislation that goes through this place is the nuts and bolts for things that the Government must do to ensure good government and the delivery of all the things that we wish to see. However, we must not be blind to the fact that this place is also about principle, and the principle of free speech needs to be defended. There are unfortunately too many instances where people feel as if they cannot speak as freely as they wish.
Lilian Greenwood (Nottingham South) (Lab)
Does the Secretary of State believe in evidence-based policy making? If so, can he cite the evidence for the problem that he is seeking to address? It appears that he is manufacturing a problem in order to have today’s debate.
Gavin Williamson
We are talking about principles. We are talking about the fact that what we want to do is give people the opportunity to have that freedom. Do you know what was so saddening, Madam Deputy Speaker? When we first announced the intention that we would take this action if it was necessary—
Gavin Williamson
What we hoped we would see is universities across the country taking further action, but what was so saddening was that so many people contacted me directly to express their concerns about being able to speak freely on campus at the universities where they worked. They were not able to put down their name and address, because they were concerned about the repercussions.
My right hon. Friend the Member for Haltemprice and Howden (Mr Davis) rightly said that it would be a tragedy if Darwin had not felt that he had the freedom and ability to challenge established thinking. We have to remember that there are Darwins out there who will be challenging the consensus, and we always need to ensure that all our great institutions deliver the freedoms that we expect them to deliver. We are a free and democratic society, and we should never be in a position where we are not doing everything we can to deliver freedom of speech. Does it not seem odd—in Parliament, of all places, where freedom of speech is there to be protected, relished and enjoyed—that the Labour party is not necessarily challenging and trying to amend the Bill, but wants to actively vote it down? It seems perverse that the Labour party is not supporting the principles of freedom of speech and is not doing everything we can to ensure that students and academics have as much freedom as possible to explore ideas.
As we look at how we protect free speech, we should all be appalled that a report by King’s College London only two years ago found that a quarter of students believed that violence was an acceptable response to inflammatory speech. The same report showed that a similar proportion of students were beginning to keep their beliefs and opinions to themselves because they were too scared to disagree with their peers.
Jess Phillips (Birmingham, Yardley) (Lab)
Will the Secretary of State give way?
Gavin Williamson
If I could just make a little progress, I will give way to the hon. Lady.
I am sure the whole House would agree that this intolerance is simply intolerable. Recent research by Policy Exchange revealed that 32% of those who identified as fairly right or right have refrained from airing views in teaching and research, with 15% of those identifying as centre or left also self-censoring. This is both unwise and unhealthy. Our universities must not become spaces where ideas are debated within a narrow consensus, with those who challenge majority views subject to censorship. Last year, I warned vice-chancellors that this situation could not and would not be allowed to continue. Although some have taken action, we cannot sit by while others do not. Our students and faculty quite simply deserve better.
Jess Phillips
As the Secretary of State talks about people being scared on campus and what he has asked vice-chancellors to do, I wonder whether he has the data in front of him for sexual harassment and sexual violence cases, which are rife on our university campuses. On the deep principles that he holds, what exactly is he doing about that, and when can I expect a Bill on that? That is surely a principled priority that the Government would want to take.
Gavin Williamson
It absolutely is. I am sure the hon. Lady was about to come on to the amazing work that the Office for Students has commissioned to ensure that all universities take the action required, including looking at whether that is a condition of registration for universities, which, as she will understand, is absolutely fundamental for universities to be able to operate.
The Bill will protect lawful freedom of speech and academic freedom on campus. We are strengthening the legal duties that exist and ensuring that robust action, including imposing fines, will be taken if they are breached. The central core of the Bill is clause 1, which amends the Higher Education and Research Act 2017 to extend the duties of higher education providers relating to freedom of speech and academic freedom. That will ensure that those freedoms are protected and promoted within higher education in England.
As we actively protect students from racism, antisemitism and other forms of discrimination, higher education providers will have to take responsibility and reasonably practicable steps to secure lawful freedom of speech for their staff, members, students and visiting speakers. That includes a duty to secure the academic freedom of academic staff. It will mean a change in ethos as well as culture. Providers will be under a duty to promote those fundamental values, as well as to maintain a code of practice setting out how students and staff should act so as to ensure compliance with that duty.
Freedom of speech does not begin and end with providers. As a matter of principle, every student at every university in every corner of the country should have the same freedom and the same rights. Students unions must not be allowed to silence or intimidate other students within a university. That is why clause 2 requires students unions and providers to take “reasonably practicable” steps to secure lawful freedom of speech for their members, students, staff and visiting speakers.
As now, the right to lawful free speech will remain balanced by the important safeguards against harassment, abuse and threats of violence as set out in the Equality Act 2010, the Prevent duty and other legislation, none of which we are changing. This is not an ideological effort; it is about fundamental fairness and common sense. These legal duties are key to ensuring that the higher education sector in England continues to be an environment in which students, staff and visiting speakers are not just able but welcome to freely express their views, as long as those views are lawful. The reason we need this effort is because the existing legislation provides no clear means of enforcement, nor does it give a specific right to individuals to seek compensation for breach of freedom of speech duties, leading to concerns that it does not offer serious, sufficient or significant protection.
This is why clause 3 introduces a new statutory tort that will protect visiting fellows, students and other individuals who may not be able to seek redress through employment tribunal. Though this legal route is an important backstop, we do not want all cases going to court where they could otherwise be resolved by other means. We are therefore providing that the Office for Students, the regulator for higher education in England, will play a more active role in strengthening freedom of speech and academic freedom standards in higher education.
Clause 4 imposes new freedom of speech duties on the OFS, including requiring it to promote the importance of freedom of speech within the law and the academic freedom of academic staff at higher education providers. The OFS will also play an important role in identifying best practice and providing advice in relation to the promotion of these rights.
The OFS will have a more direct route to regulate the freedom of speech duties under clause 5, which requires the OFS to set new registration conditions relating to freedom of speech and academic freedom. This clause will ensure that the registration conditions relating to freedom of speech and academic freedom are aligned with the duties on higher education providers imposed by the Bill. The OfS will be able to ensure that these are complied with by using its usual powers of accountability and enforcement, such as the power to impose fines.
As I have said, it is vital that students unions are also doing their bit to ensure freedom of speech on campus. Clause 6 extends the regulatory functions of the OfS so that it can effectively regulate and enforce the new freedom of speech duties that we are placing on students unions. The OfS will monitor compliance and have the power to impose fines.
Lilian Greenwood
When I heard the Universities Minister discussing this matter on the radio some time ago, she suggested that these proposals in the Bill could enable holocaust deniers to seek compensation. Do the Government really want to protect people like that and those sorts of repugnant views? Why is that the Government’s priority?
Gavin Williamson
As the hon. Lady will know, it is absolutely clear that this Bill will never create a platform for holocaust deniers. She is probably familiar with the Public Order Act 1986, the Equality Act 2010, which was introduced by the Labour party, and the Prevent duties introduced in 2015. If made an Act, this legislation will never create the space to tolerate holocaust deniers.
There is at the moment no direct way for anyone to complain about freedom of speech matters other than for students against their higher education provider. This scheme will provide a route to individual redress for all students, staff and visiting speakers to back up the new strengthened freedom of speech duties provided in the Bill for providers and students unions.
Jess Phillips
The Secretary of State is describing all the protections that will go to the OfS. I simply ask, will any of those protections provide for compensation and regulation in cases where people are raped or sexually abused on university campuses and have no redress? Will that freedom, for those students, be included? Will they be able to get compensation when their universities mismanage their cases?
Gavin Williamson
I refer the hon. Lady to the comments that I made some moments ago; we have asked the Office for Students to look into this whole area to see how we can get this redress. She probably noted that I mentioned some of the conditions of registration for higher education institutions that can be part of that process. That is an area that we are looking at and have asked the OfS to address directly.
The OfS will be able to make a recommendation to the higher education provider or students union, which could include, for example, a recommendation to pay a sum in compensation, or reinstate the complainant’s job or place on a course. The scheme will be overseen by the newly created position of director for freedom of speech and academic freedom within the OfS. The director will oversee the various free speech functions of the OfS, including compliance and enforcement. The provision in clause 8 means that there will be an individual in the OfS who has exclusive focus on championing these key values in our higher education sector.
Clause 9 gives effect to the schedule to the Bill, which contains minor and consequential amendments to other legislation. These amendments are necessary to give effect to the main provisions of the Bill, and to make all the relevant legislation work seamlessly and consistently.
Of course, Government action in this area cannot by itself be enough. Cultural change is essential, but, as we have seen in so many areas, such as gender equality or anti-discrimination, cultural change occurs more readily when it is backed up by law. I began by saying that many of us take freedom of speech for granted. The facts on the ground and in universities tell us that this must change. By introducing concise, clear consequences for any breach of a freedom of speech duty, these legislative changes will preserve, protect and safeguard free speech, and open debate in our universities right now, tomorrow and for years to come. Some day—not long from now—our children will thank us for what we do today. I commend the Bill to the House.
Kate Green (Stretford and Urmston) (Lab)
I beg to move an amendment, to leave out from “That” to the end of the Question and add:
“this House declines to give a Second Reading to the Higher Education (Freedom of Speech) Bill, notwithstanding the need to ensure legal protections for freedom of speech and academic freedom, because the Bill is a hate speech protection bill which could provide legal protection and financial recompense to those seeking to engage in harmful and dangerous speech on university campuses, including Holocaust denial, racism, and anti-vaccination messages.”
Let me start by making absolutely clear the importance that the Labour party attaches to freedom of speech and academic freedom. Indeed, it might be useful for me to remind the House of the histories of my party and the Conservative party on this issue. The Labour party is the party that enshrined the Human Rights Act 1998 in domestic law, guaranteeing legally protected rights to freedom of thought, conscience and expression. That Act is one of the most important legal measures we have to protect the rights of every citizen of this country. How did the Conservative party respond? By seeking to undermine those rights, voting against their enshrinement in domestic law and subsequently threatening to take them off the statute book altogether.
Nobody should be fooled into thinking that the Conservative party has now changed its stance. Recently, the Conservatives introduced a new law with significant consequences for freedom of expression. The Police, Crime, Sentencing and Courts Bill creates a new criminal offence if a person performs an act that causes “serious inconvenience”. It is a dangerous curtailment of the right to protest, which is fundamental to democracy. That Bill and the one before us tell the House and the country everything they need to know about how this Conservative Government really approach our right to freedom of speech and expression. A group of individuals coming together to protest could face criminal charges for causing serious inconvenience, but because of this Bill a group spreading division and hatred on university campuses would be not just legally protected but able to sue a university or student union that tried to stop them. That is what we on the Opposition Benches object to, and what the whole House should object to: a Bill that amounts to legal protection for hate speech. It has no place on campus, no place in our society and no place on our statute book.
The Secretary of State claimed a moment ago that a legislative framework—including, I was pleased to note, Labour’s Equality Act 2010, to which he referred—to prevent the spreading of hate speech is already in place, but that was not the view of the Government’s Minister for Universities, who, as we heard from my hon. Friend the Member for Nottingham South (Lilian Greenwood), acknowledged that holocaust deniers could be protected under this Bill. If the Minister responsible for this legislation believes that the Bill protects or could protect holocaust deniers, that should be a sufficient reason for any Member of this House to oppose it.
It is right, as the Secretary of State said, that we have laws to prevent hate speech, but is not at all clear that they will prevent the kind of harmful speech that will be protected under this Bill. It may not always be the case that there is a victim of harassment as prescribed under the Equality Act if, for instance, there is a meeting to discuss holocaust denial at which only those who support those horrific views are present. Conservative Members have no response on how existing laws will prevent harmful conspiracy theorists—such as anti-vaxxers—who could be protected on campus. Does the Secretary of State’s Bill protect the misinformation that causes damage and concern about vaccines and their efficacy, such as was spread by Professor Andrew Wakefield?
Not only could holocaust deniers have their right to speak on campus legally protected, but if they feel they are denied their right, they could take universities and student unions to court to seek financial recompense. They would be able to seek a pay-out from universities, seeking to cash in on public money—students’ tuition fees—that should fund teaching and learning.
Mr Kevan Jones
Does my hon. Friend agree that it also opens the door to states that wish to do us harm? There is a lot of open source evidence about the Chinese communist party using students here to propagate anti-Hong Kong stories and other propaganda on behalf of the Chinese Government. Under the Bill, we would have to allow them to go ahead because otherwise they could take us to court, allowing the harm that they could do to students of Chinese origin who might take a different view.
Kate Green
As the House will know, my right hon. Friend commands great expertise on issues of national security, and the Secretary of State must satisfactorily answer his question for the House. I know he would agree with my right hon. Friend, with me and with all right hon. and hon. Members that anything that could put our national security at risk, call it into question or give succour to those who seek to harm this country would have to be prevented. If the Secretary of State can put that assurance on the record now, I know that my right hon. Friend would be grateful for it.
Gavin Williamson
Indeed, there is a great deal of concern among students from Hong Kong about the fact that they are being silenced in university campuses up and down this country. They have not had the freedom to speak on campus, which is why this Bill is so important—so that different voices, be they Hong Kongers or Uyghurs, are able to speak on campus and not be silenced by much larger groups. That is exactly why this legislation is so incredibly important. I would love to hear from the hon. Lady what freedoms she actually does think are worth protecting.
Kate Green
I am not sure whether the Secretary of State was suggesting that Hong Kong students and Uyghurs are silenced on our campuses, which is of course is what we are talking about in this Bill. I am not aware of instances that the Secretary of State has evidenced of such people being silenced on campuses. Indeed, this is a problem with his whole Bill: it is an evidence-free zone when it comes to underpinning the concerns that he says it is addressing.
Gavin Williamson
I thank the hon. Lady for giving way. Sadly, she is misinformed, as there have been a number of instances where minority students have felt themselves silenced as a result of much larger groups of student bodies putting pressure on, especially within student unions, to silence them. This is why this legislation is so incredibly important; those students, be they of Hong Kong or Uyghur descent, should always have the ability to be able to talk openly and freely on university campuses so that these challenges can be properly exposed.
Kate Green
I am sorry, but I do not think the Secretary of State has been able to answer my direct question about instances of Uyghur and Hong Kong students being deterred from speaking on our campuses. He talks in general terms about some groups being silenced—I agree with him that that is wrong, and I will come on to that point in a moment—but I have asked him to present specific instances to the House. If he cannot do that this afternoon, and I understand that he may not have that information in front of him, perhaps later he will put that evidence in the House of Commons Library so that we can all examine it before the Bill goes into Committee.
Sir John Hayes (South Holland and The Deepings) (Con)
I am grateful to the hon. Lady, for whom I have a great deal of respect—I would like to put that on the record—but she is wrong about that. There have been instances, and I am happy to give her detail of them, of groups of Hong Kong students in British universities being surrounded, physically intimidated and verbally intimidated by students from the Chinese mainland who are also students in this country. This is not isolated; unfortunately, there is a theme of this kind. I know that she would not want to associate herself with this kind of thing.
Kate Green
I am very grateful to the right hon. Gentleman for that information, which is clearly shocking. Of course, my question to the Secretary of State would be: if intimidation is involved, why are we not already using the criminal law to address it?
Mr Kevan Jones
I am sorry, but the Secretary of State, in his rant, just does not get it, does he? He knows as well as I do that the Chinese communist party is using universities—placing students and funding activities there. If this Bill goes through as outlined, the Chinese communist party will be able to propagate its propaganda, and if a university was to turn around and say no to it, it could then use this Bill to argue for freedom of speech. He may wish to give a safe haven to that type of activity, but I do not.
Kate Green
My right hon. Friend makes the point perfectly.
I want to ask the Secretary of State about some other uncertainties that the Bill creates. I think he is seeking to say to the House that the Bill would not protect holocaust deniers. However, if a university did not want to provide a room to holocaust deniers, would the proposed speakers be able to seek compensation through the tort created by clause 3? What if nobody turns up to a meeting that has been booked? Would it be lawful to advertise such a meeting? What about other forms of free speech? Will anti-vax campaigners be protected under the Secretary of State’s Bill? Does he believe that a university should be liable under the Bill if it seeks to stop the spread of dangerous misinformation from guest speakers? What about those seeking to spread conspiracy theories or to sow division in our communities? Does he really believe not only that this kind of harmful, hateful, divisive speech should be legally protected on campus, but that those seeking to peddle it can take a university to court for interfering with their right to do so? Those of us on the Opposition Benches believe that there is no place for that on our campuses, and that is why we will be voting for our reasoned amendment this evening.
We have other objections to this Bill. Actually, I cannot understand why the Government think it is needed. An assessment by the Office for Students found that just 53 out of 59,574 events with external speakers were refused permission in 2017-18. Perhaps that was an unusually slow year for cancel culture and there is a real problem. However, last year a survey found, as we have heard, that of 10,000 events with external speakers, only six were cancelled.
Mr Richard Holden (North West Durham) (Con)
Is not the point that free speech is stifled because people will not even bring these events forward? The hon. Lady must understand from having sat in loads of constituency Labour party meetings how people were silenced for years under the previous Labour leader. In fact, they were driven out of her party, so surely she can understand how that is also happening in education institutions today.
Kate Green
I can assure the hon. Gentleman that my experience of CLP meetings is not that they are silent. However, he does raise a serious point about the chilling effect that I think the Secretary of State, too, suggested. But that cuts both ways. I believe that, subject to this Bill, universities and student unions will become much more fearful that if they host certain events, or allow them to be hosted, they will come under much more pressure to host other unsavoury events, and that that will mean they will stifle debate altogether.
If I may say to the hon. Gentleman, I think it will also mean that the campus will not feel like a safe space for some students. If it is possible for people to come on to campus and assert their right as holocaust deniers to have a meeting room, albeit perhaps to discuss the issue privately, the campus will not feel like a welcoming and safe space for Jewish students.
What is fundamentally wrong with this Bill is that it begins in the wrong place. It has started before we have had a proper national public debate about where we think the acceptable boundary sits between speech that is offensive or hurtful but that ought to be permitted under this Bill, and speech that is harmful, divisive and, though perhaps not unlawful, has no place on campus. I might have been more willing to accept this kind of legislation had that debate taken place across the country and had we had that discussion about boundaries and where we think we sit. Instead, the Government are in a rush to legislate, in the absence of much tangible evidence.
I was talking about the small number of events for which we have evidence that they have been cancelled. I accept the hon. Gentleman’s point that there will be events that we do not know about that did not take place, but we cannot make legislation on the basis of anecdote and speculation. The figures we have really do not support the idea that there is a crisis of free speech on university campuses. All I can say to the Secretary of State is that if he believes otherwise, will he call on the Office for Students to gather and publish that data every year, so that we can see what sort of legislation might be needed?
The Government’s plans, I am afraid, seem to be based pretty much entirely on a report by Policy Exchange, referenced by the Secretary of State and referenced in more than one third of the footnotes of the policy paper that Ministers published in advance of the Bill’s publication. The Government’s paper cites the report’s finding that around one in three academics—I think the Secretary of State referred to this—who identify as being politically right or fairly right have stopped openly airing opinions in teaching and research. He referenced other figures in relation to left and centre-left academics.
Let us examine a bit more of the data. Ten currently serving academics said that they were self-censoring right-wing views. I agree that widespread academic self-censorship would be deeply troubling, but the numbers we have are modest and do not, in my view, really make the case for a legislative response when the Government’s priority right now should be students’ recovery from the pandemic, making up the learning they have lost and securing their futures. Even if I am wrong, and the Secretary of State is right that there is a chilling effect on campus and that legislation is required to deal with it, do we need this Bill to do it?
Gavin Williamson
I am curious to know whether the hon. Lady can state what the acceptable level of self-censorship is that she is comfortable with.
Kate Green
The point is not whether I think self-censorship is acceptable—I do not—the question is whether legislation is the right response to it. I just believe that at a time when we have many other priorities to deal with on our university campuses—[Interruption.] There should be no self-censorship of lawful and honourable views, but it is not acceptable to make legislation and use valuable parliamentary time to deal with a small number of cases that could be dealt with more effectively without legislation. The reason I say that is that we already have the legislative framework we need on the statute book.
Section 43 of the Education (No. 2) Act 1986, “Freedom of speech in universities, polytechnics and colleges”, reads almost identically to new section A1 under clause 1 of the Bill. It creates a legal duty to promote freedom of speech for students, staff and visiting speakers. Similarly, the Higher Education and Research Act 2017 already creates a duty for the universities regulator to protect academic freedom.
Kate Green
The Secretary of State should have perhaps made these arguments in his opening speech, but I will of course give way to him again, although I hope he will make time for other colleagues.
Gavin Williamson
The hon. Lady is always incredibly generous, and it is much appreciated. I hope that I always repay the compliment in return when she intervenes. I am sure she will also be able to set out the steps under the existing legislation that an academic, a student or, potentially, a visiting speaker who has been cancelled could take.
Kate Green
I think the Secretary of State is driving at clause 3 of the Bill, which would create a statutory tort. [Interruption.] I think he is driving at the need for clause 3 and the statutory tort, and I just want to express some of my concerns about that.
Kate Green
I am answering the question that the Secretary of State asked me a moment ago. The Bill means that we will be in a situation where those who wish to challenge a refusal to allow them to speak on campus—
Kate Green
No, I would not like the Secretary of State to intervene again while I am still answering the question he asked me a moment ago. The problem with the Bill and clause 3, which creates a new route for individuals, is that it is more harmful in its effect. It opens up the possibility for vexatious litigants and their lawyers repeatedly to bypass internal complaints procedures, repeatedly to bypass the Office of the Independent Adjudicator route or the Office for Students route and go straight to the courts, undermining confidence in those procedures, undermining the funding of universities and student unions and causing confusion about the routes for redress that speakers should be able to take advantage of.
I am going to make a little bit of progress, because I know that many others want to come into the debate. The Bill before us tonight is wasting legislative time by repeating provisions already found in law to address a problem that has not been evidenced by the debate so far today. I recognise that the Joint Committee on Human Rights raised concerns that the current legislative framework was complex, but the Government’s plans seem only to complicate things further by duplicating legal duties and creating new legally actionable wrongs that would operate in parallel to university and student union processes. It seems impossible that the Bill will leave the position clearer than it is currently.
Let me be generous and assume for a moment that, despite the provisions that already exist in our laws, this Bill is needed, that in the face of the evidence we have heard so far there is a crisis of free speech on campuses and that the Bill will remedy the situation. Let us see if it succeeds on its own terms. It does not. It is a mess of duplication, poor definition and ill-thought-through provisions that will set back free speech. Let me start with an easy problem: the extent of the Bill. It applies to registered higher education providers and to student unions, and immediately we appear to hit a gap in coverage. Oxford and Cambridge colleges are not included in the register kept by the Office for Students. Does that mean that if a violation of free speech takes place in a building owned by, say, Balliol college, Oxford, instead of by the University of Oxford, it is not within the scope of the Bill? Or if it takes place in a pub in the city of Cambridge owned by the university, and someone is removed from the pub for offensive but legal speech, could they take legal action against the university?
Who are members of the university for the purposes of the Bill? MillionPlus, for example, has asked whether it would cover emeritus professors. Is it desirable to risk the Office for Students, a body whose board is appointed directly by politicians, effectively becoming a state censor of controversial topics? Why does the Secretary of State believe that clause 3 is needed? Why does he think that we need a route straight to court, bypassing university complaints procedures? If he does believe that a route to court is necessary, can he say whether there will be any limit on the damages that could be awarded? Does he not understand that, as Universities UK has warned, this risks giving a free pass to vexatious litigants and their lawyers?
Even if we thought the Bill were needed, it is poorly drafted and counterproductive. Today, we are debating a Bill that has been put forward in response to a problem that exists largely in the mind of the Secretary of State. Even if the problem did exist, the Bill would not be needed because its core provisions already exist in our laws, and even if new legislation were needed, the Bill creates more problems than it solves and is poorly drafted. In short, in every way that a Bill can fail, this Bill fails.
However, the real menace is what the Bill will achieve if the Conservative party is able to get it on to the statute book. It will enshrine legal protections for harmful and divisive speech. The kind of speech that we would not tolerate in this House would be protected in universities across the country. The Bill creates a new legal framework that allows for those responsible for such harmful speech to take legal action against universities, eating into the resources that ought to be educating our young people and supporting our world-class research programmes. The Bill is unnecessary and it is poorly drafted, but above all, it is deeply wrong and those of us on the Labour Benches will not support it. I commend our reasoned amendment to the House.
Madam Deputy Speaker (Dame Eleanor Laing)
As the Chairman of the Education Committee, the right hon. Member for Harlow (Robert Halfon), is now unable to take part in the debate this evening, we will go directly by video link to Carol Monaghan. Just before the hon. Lady begins, I should tell the House that after her speech there will be an immediate time limit of eight minutes, and that that could soon be reduced to a much shorter time limit, depending on how many Members decide at the last minute not to speak, which is a phenomenon that we face quite often at present. That is why we will start with a generous time limit; it is up to Members how we progress after that.
Carol Monaghan (Glasgow North West) (SNP) [V]
Education and Scots law are devolved, so I will keep my comments brief; hopefully, that will help move things along this evening. However, the issue of free speech is also pertinent to Scotland.
Many concerns have been raised about academic freedom and the role universities play in championing free speech. This Bill is being presented in a worrying climate, where particular views or political positions can lead to calls to remove lecturers from their positions or students from their courses. Free speech within the law includes the right to say things that, though lawful, others may find upsetting, but it cannot be exercised in a way that causes harm to others.
The law prohibits speech that incites murder or violence, stirs up racial or sectarian hatred or is defamatory or malicious, but, as I said, it does not prohibit speech that others might find upsetting or offensive. There is always going to be a challenge in correctly balancing that, but in a democracy it is important that those who hold views that may differ from one’s own are allowed to voice them.
Healthy debate on challenging topics has long been an important component of university life, but recently that has come under threat. According to the recent Joint Committee on Human Rights report on freedom of speech in universities, student societies should not stop other student societies holding their meetings: the right to protest does not extend to stopping events entirely. I agree with the shadow Secretary of State that there have been very few incidents, but unfortunately there have been examples of events having been stopped and speakers prevented from speaking.
Every one of us will have made comments for which we find ourselves attacked rather than challenged. An environment that seeks to close down debate is unhealthy. It is important to understand and, when appropriate, to challenge difficult points of view. The move towards a cancel culture should cause any functioning democracy grave concerns. I am a teacher by profession, and in my former life I often presented students with difficult views and difficult positions so that they could research the topic, inform themselves and produce their own balanced argument. That is how we develop our own opinions—through hearing different things that are challenging and forming our own position on them.
Although there may be some good intent behind the Bill, it should be approached with caution. To be clear, this Government are curtailing academic freedom by ordering blog posts by academics to be removed. They have told English schools not to use materials from organisations promoting the end of capitalism. I am not convinced that this Government can ever be the champion of free speech; they seem to support free speech when it suits their purposes and oppose it when Conservative ideals are challenged.
More practically, there are concerns about how the Bill will operate. Under the Bill as it is, any lecture, seminar or guest speech could end in a law suit. The Bill is almost unique in the breadth of its provision. In a normal judicial review, if someone wishes to challenge a decision of the Government, they must have standing—in other words, they must be affected by the decision that they wish to challenge—but in this Bill there is no “standing” requirement: any person, business, campaign group or organisation can sue. There are concerns that particular groups, especially well-funded ones, may be able to sue universities in respect of speakers who are there simply to provide debate and a challenging argument for students.
There are also concerns about the ability of universities to balance the new requirements with other statutory obligations. According to the Russell Group, there is a risk that the duty to promote free speech might indirectly undermine universities’ efforts to comply fully with the public sector equality duty, which includes duties to eliminate unlawful discrimination, harassment and victimisation and to foster the participation in university life of affected groups.
While I recognise many of the issues being discussed here today, it is important that a proper balance is struck between freedom of speech and discrimination. While the SNP will participate in the debates on the Bill, it is important to say that this is a devolved issue, and we will be participating as and when we feel it is appropriate.
Mr David Davis (Haltemprice and Howden) (Con)
Before I turn to the substance of my speech, I want to take on a matter raised by the hon. Member for Stretford and Urmston (Kate Green). She was calling, “Where’s the data in this?” There has already been one set of answers with respect to the chilling effect, which we cannot measure, but the issue here is also quite important in terms of the importance of free speech.
I am a scientist by training. All the transformations in science—every single one—have been a challenge of an existing paradigm. They have often been opposed, often by the Church; we heard about Darwin, but there was Kepler and Copernicus and others at the same time. There have always been challenges to existing science. That has been a thousand times more important than anything we can measure, and we cannot judge it in advance. I just make that point about the importance of free speech. My right hon. Friend the Secretary of State said that free speech is a fundamental principle. That is why it is a fundamental principle and why we cannot simply go on a percentage here and a percentage there.
This country—this Parliament, in fact—has for over 300 years enshrined our right to free speech in law. The 1689 Bill of Rights became a symbol of hope for the rights of people everywhere. It is the most fundamental of freedoms, and it became a symbol everywhere. In 1948— we talk about holocaust deniers; that was the most sensitive time for these sorts of arguments—it was enshrined as article 19 of the universal declaration of human rights, which said:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Today that right is under threat. I am amazed that the Labour party has not recognised that, but let us see how we get on. It is under threat in the very institutions where it should be most treasured—namely, our universities. I will return to some facts on the matter in a minute.
Freedom of speech only matters where it is controversial, when it is challenging. That is why the greatest characterisation of free speech is the one attributed to Voltaire, who said:
“I may detest what you say”—
I think that was the original phrasing—
“but I will fight to the death for your right to say it.”
I generally try not to detest or even dislike my political opponents, although there is one Labour Member who attacked J. K. Rowling in the most disgraceful terms. I would not for a second want to see him cancelled, but I want to see him here, debating the issue, because he would lose the debate. That is our protection in terms of free speech—not obliteration, but challenge.
Voltaire understood that creativity and progress in a society are dependent on acts of intellectual rebellion, dissent, disagreement and controversy, no matter how uncomfortable, but today the cancel culture movement thinks it is reasonable to obliterate the views of people it disagrees with, rather than to challenge them in open debate. The interesting element of the latter part of my career has been watching the change to this.
Social media has had an extraordinary impact. It has accelerated the growth of online lynch mobs, magnified their effect and facilitated their organisation. Today there is a terrible outbreak of intolerance in modern society: the so-called culture wars, which remind me of nothing so much as McCarthyism in the United States. When I first, as it were, came of age politically, this was still in living memory—both McCarthyism and the end of Stalinism. This is like the early stages of a totalitarian repression in other countries.
Lilian Greenwood
I agree with the right hon. Gentleman wholeheartedly regarding the concerns about what is happening on social media. Is that not precisely why we need an online harms Bill to tackle that sort of abuse rather than the Bill we have before us?
Mr Davis
Precisely. The hon. Lady prefaces the argument I am going to make, which is that we do need to use the online harms Bill as well, but this Bill is just a part of that.
As I said, the behaviour that we have seen in the online battles that have taken place reminds me of McCarthyism. If hon. Members think that is an exaggeration, I recommend that they read the account in The Sunday Times three weeks ago by Christie Elan-Cane of her mistreatment, or indeed by Suzanne Moore of hers. The incredible and repressive verbal violence, and threats of actual physical violence, alongside heavily orchestrated attacks on their reputations and work, were frightening in the extreme to people whose reputations were already well-established. It is therefore no wonder that ordinary people are terrified to speak out for fear of losing their jobs, their friends and their reputations. This is the “chilling” issue that we have been talking about.
The Bill is to correct a small—I grant you, it is small—but extraordinarily important symbolic aspect of this modern McCarthyism, namely the attempt to no-platform a number of speakers, including Amber Rudd, Julie Bindel, Peter Hitchens, Peter Tatchell and others. I hope it is just a first step in a programme to bring free speech back to Britain. I name them rather than enumerate them for a reason—because they are all established people. If established people with high reputations can be terrorised, suppressed or put down, how is it going to be for somebody without the defences that they have?
As the Secretary of State said, the Bill replaces section 43 of the Education (No. 2) Act—the hon. Member for Stretford and Urmston also referred to this—which imposes an obligation to take reasonably practical steps to uphold free speech on campus. The Bill replaces that with a slightly broader duty and extends it to apply to student unions as well. I think that is correct. It creates an enforcement mechanism, which was also missing before, so that students, academics and visiting speakers whose speech rights have been violated can hold higher education providers and student unions to account. Someone whose speech rights are breached by a university can lodge a complaint with the director for freedom of speech, who will have the power to investigate it and, if the complaint is upheld, fine the institution in question and compensate the victim. The students, academics or speakers will also be able to sue for denial of free speech. It is important that these mechanisms work—that is why this is important as an adjunct to the existing legislation—because the suppression of free speech in universities has a chilling effect on free speech in all of society. It is the pinnacle of free speech in our society, so if it is removed there, that facilitates and legitimises removing it everywhere else.
To come back to the point that the hon. Member for Nottingham South (Lilian Greenwood) raised with me, it is important that we follow this up in other areas. In the online harms Bill, we should protect free speech from casual suppression by commercial platforms. We should look hard at the effect of organised online intimidation and seek to make it less easy, perhaps by removing anonymity from perpetrators. The hon. Member for Stretford and Urmston talked about anti-vaxxers. I am very pro-vaccine, for fairly obvious reasons. However, in the name of suppressing anti-vaxxers’ propaganda, quite a lot of legitimate scientists who had objections to the exact mechanisms of lockdown, raised concerns about blood clots and so on found themselves suppressed online. We have to recognise that this is not an easy dividing line to draw.
Managed free speech is a very hard idea to promote, pursue and make work. Modern communications are a major force for either good or evil. We should make sure that we facilitate the right one, and this Bill is just the first step in that important process.
Lilian Greenwood (Nottingham South) (Lab)
I feel compelled to speak in today’s debate because higher education is absolutely vital to the success of Nottingham South. In the past, people in my city worked as makers—of textiles, cigarettes and bicycles. Now, the site of the vast Raleigh factory is the University of Nottingham’s Jubilee campus. Nottingham College’s Adams building is a former lace factory, and the old Boots site in the city centre, where ibuprofen was invented, is now BioCity, a business incubator jointly owned by the city’s two universities and using their outstanding research to support the growth of ambitious life science businesses, creating jobs and opportunities for my constituents and ensuring that Nottingham’s economy has a bright future.
I care deeply about the success of higher education and the success of Nottingham’s two world-class universities. They will need to adapt to meet the challenges of a post-pandemic, post-Brexit world and to do much more to ensure that they are accessible to every young person who wants and has the ability to benefit from an academic education, and to ensure that they are welcoming places for young people from all backgrounds that support students to learn and to thrive.
In the interim conclusion of their review of post-18 education and funding—the Augar review—published in January, the Government said that there would be
“bold investments and reforms to build a high quality, unified system.”
They committed to
“introducing a Lifelong Loan Entitlement from 2025”,
described as a “radical change”. If change is coming to post-18 education, as it clearly is, our universities must be ready to meet it, but instead of clarity on those important issues from Government, we have today’s Bill.
I also care deeply about the students who come to study in our city. I want them to have a great experience living in Nottingham. I want them to stay on in the city after they graduate. I want them to think and speak positively and warmly about Nottingham when they return to their homes across the UK and the world. I also want the young people from my constituency who go to study in other places to have good experiences. Students tell me that they are worried about the cost of living when they are studying, particularly the high cost of rent and transport. They tell me that they are concerned about their safety on the streets and on campus, particularly women students. They tell me that they are worried about their mental health and accessing the support they need while away at university.
My constituents raise other concerns. Being home to more than 50,000 students sometimes puts pressure on our city’s local services or gives rise to tensions in neighbourhoods. Rising student numbers have impacted on the local housing market over a long period. In Nottingham, we are working to address all these issues by bringing together residents, local partners, including the two universities and their student unions, and the city council. It is not easy and, in the last year, there have been particularly difficult periods, but we remain focused on finding solutions.
The pandemic has hit Nottingham hard and it continues to impact on students, long-term residents and the universities. There are real concerns about the future of our hospitality sector and our high streets and about the ability of our health services to cope with a third wave of infections. Our universities, local residents, prospective students, returning students and their parents will all want reassurance about measures to keep them safe ahead of the autumn term. They need to know how Government will support the requirement to quarantine for thousands of overseas students coming to study in our city. They want to know what the covid testing regime will look like. The youngest students want to know how they will be able to access their second vaccinations when they start at university. They want to know when they might be required to self-isolate and how they will be supported if they are. This year, many students have had to pay rent on accommodation that they have been unable to use while the part-time jobs they rely on to support themselves through education have been unavailable. They want to know what the Government are doing to protect them from such unfairness and financial hardship. These are big issues—serious concerns —that demand answers and solutions, none of which are addressed by this Bill.
The issue that this Bill seeks to address is not on anyone’s list of priorities. It is a sledgehammer to crack a very small nut, while other important issues in the sector and outside it are not being addressed. Why do we not have a Bill to address online racist abuse of the sort that we have seen in the last 24 hours? Why are we not debating the Government’s plans for better student support in order to widen participation? Why is the Government’s priority protecting hate speech, rather than the students who face racism or sexual harassment on campus, or students who are struggling with poor mental health?
Freedom of speech, and the free exchange of ideas in pursuit of truth and knowledge, is absolutely central to our universities’ whole purpose, but where is the evidence that there is a problem? The vice-chancellor of Nottingham Trent University confirmed to me yesterday that not a single event at the university has been cancelled due to the content to be debated. The Bill is unnecessary and unclear. It risks opening up our universities to vexatious and frivolous claims, and it may actually make universities more risk-averse and more cautious about whom they invite to speak.
Just a few weeks ago, some Conservative MPs seemed determined to create division among our country’s football fans by criticising the England team for visibly expressing their opposition to racism by taking the knee—freedom of speech. Today, the Government are trying to manufacture a row about free speech on campus. The Government should be working with universities and students to address the real priorities for higher education. It is shameful that they are not doing so, and that is why I oppose the Bill.
Dean Russell (Watford) (Con)
I speak today from experience of working with universities and as an academic studying physics many years ago. What I found during that time was the importance of enabling diversity of thought, the ability to challenge ideas and the ability to propose new ideas, even though they go against the grain of what others may think.
Over 10 years ago, I worked on a project with a Russell Group university that would not allow its academics to blog because it was too scared that they might say the wrong thing. I successfully encouraged the university to set up a new website that included the big debate, which enabled academics to have a yes/no debate on the topic of the day and to provide different points of view. That is what academia and universities should be about: they should be about debating things to get to the truth.
As we have seen over the past year with covid, there have been disagreements about the science. We have seen disagreements about the ethics and morality of different issues that have impacted on us all, and we must make sure that we enable and continue that within our universities. As my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) mentioned earlier, the challenge is that we have to look at this issue through the lens of modern society. Ten years ago, blogs were a new thing; now, social media is everywhere, and what happens in one campus can go across the country and the world in a matter of minutes.
We see all the time the awful impact of what I call hate-mobbing—the idea that, all of a sudden on social media, one person is targeted for their point of view. In many cases, it might be because they have an absolutely abhorrent point of view and should not be voicing it in the way that they are doing, but the point is that we need to make sure that such views are debated and scrutinised. I worry that we are moving towards what I would call a swipe-left society, like with certain apps, whereby people keep swiping until they get to a point of view or debate with which they agree, and that is the only thing that they see. We must make sure that, in universities, we challenge each other and see the arguments of other points of view, to make sure that the debate is rounded and that, as I say, we get to the truth.
Andy Warhol famously said that, in the future, we would all have 15 minutes of fame, but increasingly I see that we are getting 15 minutes of shame, with people being attacked for their points of view. We have to make sure that we protect them on campus, because the academics and students of today will be in this House in 10 or 20 years’ time. They will be the leaders of our culture and society. They will be the people teaching our next generation. If they feel that they are being stifled in their view, and if they are scared of expressing a point of view that is different, we stifle them and society, and the seeds of doubt are planted now for generations to come.
There is another really important point here that we must take into account. We have talked about hate and hate-filled speech, and, of course, we do not want to give those platforms, but we also need to make sure that such views are scrutinised. The shadows are where hate festers. The awfulness of certain people’s point of view is not dismissed from their mind because they do not say it, they just hide it and get others to hide it with them, and then it becomes a movement or a moment. We must make sure that we shine a light on hate, that we shine a light on different points of view, because if we do so we can argue that, quite often, what is being said is absolutely foolish and nonsense. Anti-vaxxers are a good example of that. After a year of our inboxes being filled with, at times, utter nonsense and fearmongering, science and the success of our vaccine programme has proved that all wrong.
There is a famous phrase that I like, which is that a mind stretched by a new idea never returns to the same size. With the use of free speech, the truest form of free speech, in academia and universities, we stretch everybody’s minds and we challenge each other to have new beliefs and new perspectives. That is why I support this Bill today. We need to make sure that we protect freedom of speech on campuses more than anywhere because that is the one place where we should be challenging each other to find the truth and to be able to support that for our society and our nation to come.
Rosie Duffield (Canterbury) (Lab)
Freedom of speech is one of the building blocks of a democratic society. Here in the UK, we take ours for granted, and hearing a variety of opinions on every important issue helps us to form our own and helps us to choose political, societal and cultural leaders who represent our own beliefs, reflect our values, and pledge to uphold them when in public office. Similarly, we learn what we find unacceptable, what to reject at the ballot box, and how to form and strengthen our own arguments against the views with which we disagree.
I remember how sinister it seemed when Mrs Thatcher’s Government chose to ban the voices of Sinn Féin from 1988 until 1994, so that broadcasters had to use actors’ voices instead. While there were very strong arguments for doing so—I certainly have no agreement or any affinity whatsoever with the actions associated with that group, which, at the time, affected my family directly—banning the public from hearing what they had to say seemed controlling, disturbing, patronising and heavy-handed as it potentially prevented those of us with an interest in politics from forming our own full views on one of the key political topics of that era. Similarly, in a recent Bill, the Government have banned peaceful political protest and demonstrations, which is a vital way to make our views heard.
The recent trend to no-platform those whose opinions we may not like feels somewhat sinister, too. After all, universities are think-tanks and seats of learning. We must be able to hear from a variety of academics, writers and thinkers on both current and historical issues. Increasingly, academic freedom has sadly become a feminist issue, too. It is not an earth-shattering surprise that there is a worrying trend to no-platform or cancel mostly women from some universities. Recent high-profile cases include writers and broadcasters such as Germaine Greer, Julie Bindel, and Jenni Murray; and academics such as Kathleen Stock, Alice Sullivan, Rosa Freedman, Selina Todd, Shereen Benjamin and many others. Far from being just a handful of women accused of wrongthink and condemned as heretics, this is just the tip of the iceberg as many students, too, have been asking the wrong kinds of questions. Crucially, in such cases, the women and some men themselves are then considered to be banned as people and become the subject of targeted harassment, both in their places of work and across social media. It is vital that women are allowed to speak, vital that we are allowed to question, and vital that we are able to keep pushing open doors that have previously been closed to us.
Of course, academic freedom and freedom of speech must also be balanced. Students and staff have to feel safe from hate and prejudice. Recently, the all-party group against antisemitism, of which I am a vice-chair, has written several letters to the vice-chancellor of Bristol University to condemn the views expressed by one of their staff. Holocaust denial is not a legitimate opinion or a valid point of view. Perhaps those who think so have missed the testimony of survivors or the very real evidence that still exists on the sites of those atrocious acts of evil. So, too, must we be allowed to dissect our past role in the repulsive histories of slavery and colonialism. Those facts must be taught in an honest and unfiltered way in order for us to view them from where we are now and in the context of our society today.
There has to be a balanced approach, and we have to be able to entrust universities and their staff and unions with this issue, but I am not convinced that legislation is the way to go. Universities are under increasing commercial pressure, and in a more competitive market, threatening legal action over their decisions is not going to help when they have been under considerable financial strain. How do we ensure that the balance between freedom of speech and hateful prejudice is maintained? Is a set of rules and a threat of financial penalties the best way to protect freedom of speech? Why are the proposals framed around freedom of speech, not academic freedom? As the academic Shereen Benjamin writes:
“Academic freedom specifically refers to the freedom of all members of universities…to pursue whatever lines of enquiry they decide, in research, teaching and public engagement, without fear or favour.”
While I broadly support the aims of this Bill and think that it raises some really important points for debate, I do not believe legislation right now is entirely necessary; it seems a little like a sledgehammer to crack a nut.
Fiona Bruce (Congleton) (Con) [V]
I strongly support this much-needed Bill. Over recent years, I have been very concerned to hear of numerous restrictions on freedom of speech in academic settings. A doctorate student told me:
“There really is no point me trying for an academic career with my political and religious views.”
A career councillor gives the advice to Christian students—students holding what many in this country would consider to be traditional faith-based views held over hundreds of years—that
“If you’re seeking a career in academia, expunge all mention of your faith or Church membership from your CV or social media to avoid difficulties which these could cause in your job chances.”
A student told me that he was stressed and worried for a long period about whether he would be disciplined in some way and that it might affect his degree, because his university authorities were investigating a private conversation that he had had with friends in a university bar or common room, which had simply been overheard by someone else and reported. The conversation was not in breach of any regulation, and there was clearly no harassment, no abuse and no threat of violence.
Universities, of all places, should be environments of genuine diversity and of open debate, free exchange and the exploration of ideas—however unpopular or unfashionable—without fear, yet there clearly is real fear today among certain academics about expressing certain views, often deeply held ones. Two years ago, a group of parliamentarians, including me, conducted a cross-party inquiry examining areas of life in the UK today that make it challenging for a Christian to live in accordance with their beliefs, and one such area we looked at was academia. One witness working in academia told us that, in preparation for giving evidence to us, he conducted a short survey. He contacted 69 Christian academics whom he knew in institutions across the country and asked them: “Do you feel your academic career would be adversely affected if you were to be public or more public about your faith?” Virtually half of those asked—34—replied yes, and not one of them on being asked was willing to be identified to our committee for fear of the potential negative impact on their career.
If I may, I will cite one more of the many concerning examples evidencing why this Bill is necessary, and it is one that involved me. I was invited by Oxford Students for Life to talk about my parliamentary campaign to outlaw sex-selective abortion. As I started to speak to a gathering of about 100 students, an attempt was made to no-platform me. A uniformed official arrived in the room and requested that the whole meeting be stopped, apparently as the event, including my views, would cause offence to students sitting in a common room on the far side of the quad opposite. They could see but could not hear me. There were many rich ironies to the situation. I was effectively being discriminated against for speaking against discrimination, for which across the world many more girls are aborted than boys, and I was being prevented from simply relating to my work that is already available in the public domain. Most of it is in Hansard. Eventually, the organisers of the meeting, the officials and the objectors reached a compromise: I could continue speaking if all the curtains in the room were closed.
That was a completely unacceptable incident. It subsequently resulted in an apology from the authorities, but it was one of the reasons why I was prompted to join fellow members of the Joint Committee on Human Rights in holding our 2018 inquiry on freedom of speech in universities. The inquiry concluded that, in universities:
“A number of factors are limiting free speech”
It revealed a plethora of such incidents—plenty of evidence that Opposition Members may like to look at—while many more are clearly never reported. One university tutor told us that he had had no idea of the extent of the issue until he started looking into it in response to our inquiry. We heard of challenges such as student groups finding difficulty in getting space at freshers’ fairs, in booking rooms for speakers, in getting approvals for speakers or simply in registering as a university society at all. I had hoped that adequate change would follow our report’s recommendations, perhaps through well enforced guidelines or codes of practice, but not so, hence the need for legislative change and this welcome Bill.
I have three final points. First, on subsections (6) and (9) of proposed new section A1 of the Higher Education and Research Act, I am concerned that the freedom for academic job applicants to express their views should not be limited to freedom in areas
“within their field of expertise.”
In many cases, academics’ expressed views may range more widely, but they should not be affected in their job applications just because of that. I ask the Minister to check with the draftsmen.
Secondly, my role as the Prime Minister’s special envoy for freedom of religion or belief is primarily international facing and, as I and colleagues in the Foreign, Commonwealth and Development Office constantly say, promoting freedom of religion or belief is a key human rights priority for the Government. We aspire to be a global leader in FORB, but I cannot speak credibly in the international community and arena about the discrimination faced by people in other countries on account of their beliefs—whether they cannot get a job, an education or otherwise; of course, much persecution is far worse—if we do not scrupulously apply the principles of article 18 of the universal declaration of human rights in this country. I hope that Hansard will put that here in full. That point is frequently made to me in connection with these issues.
Finally, let us be in no doubt that the challenges to freedom of speech and the very real chilling effect that accompanies them are not limited to university settings but extend far more widely. There is more to be done to protect freedom of speech in this country effectively, but the Bill is a good start.
Jess Phillips (Birmingham, Yardley) (Lab)
I absolutely agree with lots of what has been said about how it is vital that we have robust debate. I am challenged daily by people in one forum or another—and, to be honest, that is the best part of my job. It is the bit that I like the most, and it is the bit that I would seek in our universities.
I wonder if the Secretary of State remembers when, in his time in the Whips Office, one of the Whips wrote to all the universities to ask them what they were teaching about Brexit. That Whip promised us a book, but I have checked with the Library and it is not there. So he was not necessarily writing to the universities for his book research. One wonders why he was writing to them. I look forward to the book. The Secretary of State will remember that and, no doubt, I was robust with his colleague at the time.
My hon. Friend the Member for Stretford and Urmston (Kate Green) highlighted from the Front Bench the fact that last year six in 10,000 events were cancelled, mostly due to incorrect paperwork. I think six is probably too many—unless there was really bad paperwork—so I thought that I should read to the Secretary of State six cases that have come across my desk that I think need a Bill and Government time, rather than Twitter leaking into our Chamber. My husband always says, “It’s funny how you politicians take on issues because the internet has leaked all over you as if that’s all that matters.” This Bill feels a little bit like the internet leaking all over this magnificent building.
I will read about a very serious case of a university student being quite seriously silenced: “I am under an NDA which relates to my experiences of being raped on campus and how the university dealt with my complaint, and threatens me in a written contract of expulsion if I tell anybody about my experiences. In fact, I am breaking my NDA by emailing you and I hope you understand how strongly I feel about this issue given I am putting myself at risk to speak out about it.”
I turn to another case for the Secretary of State to listen to. This involves a university that has already been mentioned today. One woman said,
“we were very explicit—each of us—in describing exactly what had happened…this was not consensual and I want something to be done about that.”
The three women outlined their allegations of varying severity, ranging up to rape. The normal response to this sort of testimony is to lay out the options available—either to go to the police or to complain to their college or university—but the women were not told that; they were told: “It will be too onerous on you to go through the complaints system.” Complaining through the college was presented as an unappealing option. One of the women later wrote that they
“were advised that the process of pursuing any form of disciplinary action would not be worth the emotional toll it would take on us.”
One of the women in this particular case—which involved three women, so we are now up to four of our six—had to leave the university, not the perpetrator of the crimes against her.
Another case that was widely reported on in the newspapers happened at Oxford University Women’s Boat Club. When a woman told a senior scholar of her sexual assault, the professor laughed and said:
“I totally get it, I thought we had sorted it out the last time but we clearly haven’t…It’s a very toxic combination of alcohol and very young athletes at university, it doesn’t work at all.”
In a separate part of the discussion, the professor said:
“This university is not very good on these student welfare-type issues.”
There are the six cases. Where is the action on the widespread problem of sexual harassment and sexual abuse on the campuses in our country? I have just given six cases; where is the Bill and the priority for this thing that silences people whose names we will never hear? They could have brilliant scientific ideas but will leave university because of what has happened to them. Where is the regulator in the Office for Students who will provide the power to impose fines and breaches when universities do things wrong? Where is it? Where can I send this woman with a non-disclosure agreement? Perhaps the Secretary of State would like to intervene on me, because I would love to give that woman some advice.
Where is the role equivalent to the director of freedom of speech and academic freedom? Where is the £1 million in this Bill for an officer to oversee universities’ efforts in this regard? Where is the £1 million to spend on an officer who goes to every university and makes sure that the women on those campuses are safe? Where is that officer? Where is the Bill for that?
This reminds me so much of what happened in schools recently with Everyone’s Invited, which included university campuses as well. The Secretary of State comes forward and says, “We’re going to do something about this. This is horrifying. We are going to make sure that something is done about this.” These issues were highlighted five years ago. It was five years ago, 10 years ago, that the issues that I am standing here talking about today were highlighted. Where is our Bill? Where is the Bill on the sexual harassment and abuse that is silencing thousands of people on campuses in every single town and city up and down this country? Where is our Bill? Why is this the priority? This reminds me very much of the fact that I am constantly told that the Government make a priority of addressing violence against women and girls, but the amount that they are proposing to spend is £100 million less than on the boat that the Queen does not even want. It’s the internet— it’s leaking.
Where is the urgency needed for those women and men on university campuses who have been silenced by a lack of process? Where is the Bill for them? Where is the urgency? Where was the urgency five years ago when we told the Secretary of State about schools, and it took a young girl who had been raped and put back in the classroom with her rapist—the then Secretary of State being taken to court—before any regulation was even written? What do we have to do? Do I have to start a meme on the internet? Do I have to get some sort of following from the bots to make this issue heard? Where is the Bill on sexual harassment and sexual abuse, and the processes that we can take if something bad happens? Where is it? Without it, we will be stifling freedom of speech more than any list of anybody who has not been able to speak at a university.
I like to list the women who have been failed in this country, but eight minutes? Eight hours would not cut it. Where is this Bill on that element of freedom of speech—or is it just not politically expedient enough? I honestly want everyone to have the freedom to speak freely and give out their ideas. Darwin has been used as an example all day today; had Darwin been a woman who had been abused at university, none of you would be able to say her name.
Sir John Hayes (South Holland and The Deepings) (Con)
To think and speak freely is the foundation of an open society; there will be little disagreement about that across this House. One might think that the institutions that, in the words of Cardinal Newman, give a man
“a clear…view of his own opinions and judgments, a truth in developing them, an eloquence in expressing them and a force in urging them”,
would be the champions of challenging contrasting ideas —the scions of scrutiny. It is therefore a bitter irony that some people with power in higher education today are the enemies of freedom and that many of those who are not are intimidated into acquiescence. How sad it is that intellectual freedom has to be protected by law from those with power in those institutions.
The hon. Member for Glasgow North West (Carol Monaghan) cited some examples, and there are many. Let me just give a flavour. Selina Todd, the professor of modern history at Oxford, following pressure from trans activists—she was accused of transphobia, needless to say—was no platformed at Exeter College. As my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) mentioned, former Home Secretary Amber Rudd also had her invitation to speak at Oxford rescinded.
It is not only visiting speakers but academics and students in our universities who are subject to this kind of intolerance. The University of Plymouth investigated a senior lecturer, Mike McCulloch, for tweeting “All lives matter” in June 2020; a student at Leeds University was placed under investigation for questioning Black Lives Matter; and a first-year student at the University of Kent, as the hon. Member for Canterbury (Rosie Duffield) no doubt knows, was placed under investigation for questioning whether George Floyd deserved martyrdom given his criminal record—a violent criminal record, indeed.
Those are all contestable opinions. Of course they are all matters of debate and of course some of them are contentious views, but the whole point about a free society is that we should be able to hold and express contentious views. It is worrying—more than that, chilling—that, as has been said, we are creating a cohort of young people who are hyper-sensitive: no longer daring; no longer prepared to think the unthinkable; deprived of intellectual rigour and imagination. The hallmarks of that woke culture—as we have heard, perpetuated principally on social media—are spite, hate and vitriol. Frank Luntz, the American pollster, has warned that the culture battles we have seen so far are nothing compared with what is on its way. The cultural detritus from the United States is making its way to our shores relentlessly: a culture that is intolerant of measured, principled disagreement. It has gripped many in the United Kingdom, as I have already described. I could go on with a list and I am happy to make that list available to the House of Commons Library if that is helpful to colleagues who doubt the depth of the problem.
The deliberate machinations of the few are dividing the many. We should react with horror when some of those trusted with fostering the flower of Britain’s academic youth are instead intent on producing a carbon copy of politically correct individuals: less ambitious, less daring, less imaginative than the generation that came before. Policing the thoughts of those students who disagree has become commonplace, for the defining traits of the unblinking all-seeing eye of wokery are short sight and narrow minds. George Orwell recognised that this is not simply a problem for students. Academics are subject to the same kind of faults. He said that the charlatans of his time were peddling ideas that were so stupid only intellectuals could believe them. The people who seem to want to impose their exclusive vision on us are so often ignorant of history, apparently ignorant of biology and certainly ignorant of human nature.
Jim Shannon (Strangford) (DUP)
I wholeheartedly agree with the right hon. Gentleman. Does he agree that we must remind people that we must hear, if not accept, other arguments, and that if we continue to raise generations who believe their opinion trumps others and that to disagree with them means to hate them, we will find ourselves in a very different UK?
Sir John Hayes
The hon. Gentleman is right that having one’s views challenged, testing ideas and being scrutinised is the characteristic of the open society advocated at the beginning of my speech. It is right that we should both have our views challenged and sometimes be disturbed by counter-arguments. It is extraordinary that feminists, notably Germaine Greer and Julie Burchill, have been no-platformed for believing in biologically based legal rights that women fought to have protected for so long.
The enemies of an open society have successfully cancelled a litany of students and academics who dared to espouse understandings of race, gender and sex which were once regarded as a priori assumptions. Those without wealth or influence to resist have too often been left at the mercy of the mob. These are the quiet everyday stories of the liberal tyranny which go unreported. These are the people who need recourse and outreached hands to assure them that the Government believe in the right to disagree and, yes, disturb—and perhaps, yes, to offend. For to be inspired means first being moved and changed in a way sufficiently startling to open up new horizons, extend boundaries and give life to opportunities. Deprived of that we are lessened, because in safe spaces where nothing disturbs there is no room for inspiration, no space for innovation. Without the freedom to say what they think, people are poorer. Without laws to defend the lawful entitlement they confer, nations are weaker. Without the chance to read and hear, contest and condone all kinds of ideas, our children are robbed of their future chance to flourish.
The Bill must pass into law in a state that leaves no room for doubters and schemers to carry on with their sanctimoniously bigoted practices. Through ignorance or inaction, we cannot condone the wicked ways of the self-appointed thought police. Make no mistake: this culture war is the issue of our age. It is the struggle of our generation. Nothing matters more. This is our battle of Britain.
Daisy Cooper (St Albans) (LD) [V]
I start by thanking the hon. Member for Birmingham, Yardley (Jess Phillips) for her incredibly powerful and moving speech. I offer her my full support and that of my party for her calls for a Bill to tackle sexual abuse and violence on university campuses.
Right now, however, I wish to speak to the reasoned amendment in my name and those of my Liberal Democrat colleagues, even though it was not selected for a vote. I believe in the right to free speech. I welcome the opportunity to challenge people whose views are different from mine and I regard freedom of speech and informed public debate as vital elements of a democratic society. I also believe that universities should absolutely welcome rigorous well informed debate because free speech is, after all, at the heart of academic freedom—the freedom to inquire and explore ideas, facts and data that are difficult and sometimes inconvenient. But the laws required to protect free speech in universities already exist in the Education (No. 2) Act 1986, so no new laws are needed to achieve that goal.
On whether academics are scared to share their own views, the Government’s own White Paper acknowledges that the Joint Committee on Human Rights has examined that issue and concluded that it is just not a widespread problem, so no new laws are needed for that either. If the Government believe that there are still concerns, surely a more effective solution would be for them to beef up the Office of the Independent Adjudicator for Higher Education, without having to create a whole new role or whole new piece of legislation.
On no-platforming, research has shown that in 2019-20, of almost 10,000 events involving an external speaker, just six were cancelled—that is 0.06%. Again, the evidence just does not support the Government’s claims that this is even really a major problem. It certainly does not justify the heavy-handed approach of giving the Office for Students extended regulatory powers and making it answerable only to the Secretary of State. That is an authoritarian sledgehammer to crack a nut.
The Bill gives students, staff and visiting speakers the right to sue universities and student unions for alleged breaches of free speech, with all the associated costs. That would create an open season for vexatious claims and expensive litigation—and, what is worse, universities would therefore be incentivised to stop holding events on tricky and controversial issues in the first place, for fear of litigation. The Bill would have a chilling effect because, far from protecting free speech, it would stifle it. At the very least, this legislation must include a threshold for harm, as under the Defamation Act 2013, so that that route cannot be abused by individuals or groups who do not have genuine grievances. There is no place for hate speech in universities, but as it is drafted the Bill would enable holocaust deniers, antivaxxers and more to be not only protected on campus but empowered to sue a university in court.
In conclusion, the Liberal Democrats oppose the Bill as worded. It is not based on evidence and is not proportionate. Worst of all, it actively undermines the very principle of free speech that it claims to support. Free speech is about the right of every individual to speak truth to power, but the Bill does the opposite. It gives those in power or with power the ability to determine who is free to say what. Far from protecting our freedoms, it is actually yet another example of this Government’s concerted efforts to take our freedoms away. Given that universities are already required to protect freedom of speech and that research suggests that no-platforming is incredibly rare, the Government should drop the Bill entirely. That is what the Liberal Democrat reasoned amendment sought to do.
Gareth Bacon (Orpington) (Con) [V]
I strongly support the Bill, which was a manifesto commitment in an election that gave the Government a landslide majority less than two years ago. Given a growing and worrying cultural trend across our campuses over recent years, the Government are right to bring this legislation forward. It is a matter of deep regret that the Bill is even necessary in 21st-century Britain.
It has been said previously in this House that sunlight is the best disinfectant, and we know that open debate allows good ideas to drive out bad ideas—that, in essence, is the basis of the scientific method. Our places of education should be the last to succumb to the idea of one truth, but freedoms of speech, thought, expression and individuality are now being censored in increasing numbers on campuses across the country, primarily by those of a hard-left mindset but in a manner that has more in common with the European dictatorships of the first part of the last century than a democratic nation such as Britain in the current one. If we do not act now, we risk a central tenet of our democracy being lost.
University used to be a place where students would go to test theories and engage in critical thinking. As Ruth Kelly, the former Labour Education Secretary, said:
“Universities should not only welcome debate and dissent from established ways of thinking—they should actively encourage it, because that’s how we achieve progress and change. If universities were only to allow the regurgitation of the received wisdom, what would be the point of them?”
Well, what indeed?
It is a matter of regret that, too often, political agitators see free speech as something to be destroyed because they are afraid of having their arguments brought out into the open and challenged. The mob mentality is underpinned by a fanatical zeal that they are the enlightened ones and only they hold objective truth. That has given rise to the phenomenon of cancel culture, as hon. Members have said, whereby anything that challenges the prevailing thought is denounced as heretical, racist or fascist, and in many cases a combination of all three. Examples of the intolerance that has crept into academic life are ever increasing. Peter Hitchens, who was hounded by a mob of students, summarised it well:
“They had absolutely no desire to influence me or debate with me. I was an enemy, not an opponent, and so I should not have dared to be there. My actual existence infuriated them”.
The irony, of course, is that restricting free debate in such a way is deeply undemocratic. Indeed, it is a totalitarian action. This Bill is therefore necessary to prevent a dystopian, Orwellian indoctrination.
Clauses 1 and 2 will amend the Higher Education and Research Act 2017 by creating new duties on governing bodies and student unions to secure freedom of speech. I warmly welcome clause 8, which will enforce that where necessary by creating in the Office for Students a director to champion free speech in academia. Clause 3 is perhaps the most crucial, because proposed new section A6 to the 2017 Act will provide for civil claims to be made where those duties in clauses 1 and 2 are breached. That is critical because it gives the Bill teeth.
The dangers I have outlined are not, of course, isolated to universities. The campus is merely a staging ground for wider civilisation and society. Those who wish to do away with freedom of speech are attempting to dismantle the foundations of our society and to supplant them with their own totalitarian doctrine. By removing freedom of speech, dissenting voices can be silenced and submission ensured. For proof of that we need only look at recent attempts to subject British history to a radical revision and the accompanying attempts to taint our greatest heroes. This is a deliberate and concerted attempt to erode the pillars of our nation so that we are left with nothing to believe in. Once that point is reached, those responsible—the anarcho-Marxist, hard-left agitators—will be able to impose their own, ever-changing standards whereby yesterday’s truth is tomorrow’s crime.
By ensuring in legislation the sanctity of freedom of speech, I hope that the Government set a precedent to consider further actions. There are areas in which the Bill can be improved as it proceeds through its remaining stages, particularly to avoid its being neutered by contradictory interpretations of the Equality Act 2010, but there will be an opportunity to discuss that in more detail at a later stage. I support the Bill’s Second Reading and urge all colleagues on both sides of the House to do likewise.
Danny Kruger (Devizes) (Con)
First, may I congratulate the Minister for Universities on the very reasonable tone with which she has advocated this Bill, and the Secretary of State on his speech? As he said, this Bill is not a battle in a culture war or an ideological effort, but simply an attempt to defend what is already legal in this country. I do not want to aggravate the culture war—which, as my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) says, we are certainly in—but the fact is that there is a battle of ideas going on in our universities, and if we are to prevent the exacerbation of the culture war, we need this Bill, and ideally we need it to be strengthened.
Opposition Members are right in pointing out that there are very few overt instances of censorship, but nevertheless academic freedom is under sustained intellectual attack in our universities. The battle of ideas that we are in is not one in the traditional sense of a clash of opinions and the normal free exchange of ideas that universities are all about. It is much more fundamental than that. It is a battle between, on the one hand, the very idea of the free exchange of opinions and, on the other, the opinion of the radical left, going back to Marx—the idea that the notion of a free exchange of opinions is itself oppressive.
I do not think many Opposition Members are radical Marxists but, in opposing the Bill, they are empowering radicals. I want to do justice to Members on the other side of the House, so I hope you will briefly indulge some student philosophising, Mr Deputy Speaker. The radical left seems to have two strong beliefs. First, it believes that identity is psychological—that a person’s true essence and self is constructed by themselves or other people. That explains the extreme sensitivity around people’s feelings, because if the self is a psychological construct and people’s identity is basically how they feel, being hurt or offended is absolutely catastrophic. An insult is a form of violence—it is almost worse than violence.
The second belief of the radical left is that people can and do suffer what is called false consciousness: they can believe ideas that are not true and that are, in fact, harmful to their own interests. These ideas are also known as conservative opinions, such as a belief in the western political and economic model, in Brexit or in the Conservative party. That explains why the radical left does not have a problem with censorship and why it thinks that censorship is actually necessary for freedom to suppress false consciousness and allow people to discover their real selves, rather than the conservative self that the ruling class has imposed on them.
Sir John Hayes
And that is precisely why the word “heretical” is apposite, because views that do not conform in a quasi-religious way to the orthodoxy that my hon. Friend has described are regarded as heresy. Once they are defined as such, almost anything can be legitimised in putting them down.
Danny Kruger
My right hon. Friend is absolutely right, and he will be delighted that I am about to quote someone with whom he does not strongly agree: Herbert Marcuse. No debate about universities and students would be complete without Marcuse. He is the great Marxist philosopher who basically wrote the script for the radical left. In his “Repressive Tolerance” essay, which is admirably well named, he argued for
“the withdrawal of toleration of speech and assembly from groups and movements which promote aggressive policies, armament, chauvinism…or which oppose the extension of public services, social security, medical care, etc. Moreover, the restoration of freedom of thought”—
as he calls it—
“may necessitate new and rigid restrictions on teachings and practices in the educational institutions”.
That is what we are up against. I do not accuse a single Opposition Member of believing that but, in opposing the Bill, they are empowering those opinions. We are in a very parlous state in our universities, so I welcome the Bill, its strengthening of the duty for universities to protect free speech, the extension of this duty to student unions as well, the right of academics to sue if they have been no-platformed, and the role of the new free speech champion at the Office for Students. They are all excellent provisions.
To rebut what has been said by Opposition Members, the Bill does not allow hate speech. Hate speech is illegal. The Bill does not protect Holocaust denial, which is not protected speech. Under the ECHR, Holocaust denial is not protected speech. If a Holocaust denier is no-platformed, they would have no right under the Bill to sue or challenge the university.
Joy Morrissey (Beaconsfield) (Con)
Does my hon. Friend agree that the Bill is there to deal with the culture of perpetual offence—someone being offended to the point that they are not willing to listen to, or engage in, constructive debate—and that the Bill allows for the promotion of freedom of difference of opinion, so that people can come together and form new ideas but do not always have to agree with what the speaker is saying?
Danny Kruger
I absolutely agree with my hon. Friend.
I will finish by suggesting a few improvements to the Bill that we might consider in Committee. First, we should go further than insisting that all “reasonably practicable” steps are taken to promote free speech. We should insist that all necessary steps are taken, because there is a real danger in the current wording—for instance, a university might pretend that the cost of security makes an event impracticable, which means that its opponents could effectively boycott it or ensure that it is withdrawn.
Secondly, I think that we should broaden the protections for academics beyond their field of expertise—which begs the question of how we define a field of expertise. What, if a professor of European history were to criticise the Chinese Government, for instance, or indeed criticise his or her own university for being too cosy with the Chinese Government? We need to protect those academics too.
For an academic, in that academic’s own field, there is a very important consideration about control of the curriculum—about not so much freedom of speech as the freedom to teach, and the question of who decides what academics should be teaching. We need to explore the concept of conscience rights for academics to resist a drift towards teaching that they would not accept that they should be obliged to carry out. We need some protection for dissent in the system.
As was mentioned by the shadow Secretary of State, the hon. Member for Stretford and Urmston (Kate Green), the Bill does not insist that colleges at Oxbridge and Durham take the necessary steps to protect freedom of speech; that applies only to universities and student unions. I think we should extend the obligation to colleges. We should allow academics to appeal not just through the civil law but to an employment tribunal if their academic freedom is restricted. Lastly, I think we need to clarify the role of the Equality Act 2010, which should not be used to close down an event on the grounds that someone says it would constitute harassment or discrimination.
Mr Kevan Jones
The hon. Gentleman has just argued for extending the legislation to employment law. Is he aware that universities are covered by a system of tenure which protects their academics? That has nothing to do with employment law.
Danny Kruger
The fact is that we are extending protections to universities and all aspects of law should be covered. That should include those who are not covered by tenure—not just academics but visiting speakers, and the students themselves.
As I was saying, I think we need to clarify the role of the Equality Act. Essex University no-platformed two visiting academics who held gender-critical views on the grounds that under the Act the event would constitute harassment or discrimination, and that was quite wrong. My hon. Friend the Member for Congleton (Fiona Bruce) gave another example earlier.
Opposition Members think that the Bill is unnecessary because there is no real issue and no problem to address. I could not disagree more. I agree with my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes). I do not think we have debated anything as important as this, except perhaps the Brexit legislation, in the 18 months during which I have been in the House. To prevent a culture war, we need to allow dissident views to be given full expression.
I give all credit to the Minister, and also to Policy Exchange, the Free Speech Union, and all those outside the House who have campaigned for this law. It is very necessary, and I support it.
Several hon. Members rose—
Mr Deputy Speaker (Mr Nigel Evans)
Order. The next three speakers will still have eight minutes. The speaker who is 19th on the call list has dropped out, so from Beth Winter onwards, the limit will be six minutes.
Tonia Antoniazzi (Gower) (Lab)
I agree with my hon. Friend the Member for Stretford and Urmston (Kate Green) that there should be no censorship of lawful views, and that there are many pressing issues for students that this Tory Government are not addressing. However, I am convinced that there is mounting evidence that female academics’ ability to discuss their rights in law is already being curtailed in our higher education sector.
According to guidance issued by the Equality and Human Rights Commission in 2019,
“Freedom of expression is a key part of the higher education experience. Sharing ideas”
freely
“is crucial for learning, and allows students to think critically, challenge and engage with different perspectives.”
The guidance states that higher education providers
“should encourage discussion and exchange of views on difficult and controversial”
topics. In the last few years, however, it has come to light that many women in universities across the UK are being censored, harassed and threatened for the simple act of trying to engage in debate and discussion about the impact of gender self-identification on women’s sex-based rights.
As has been mentioned, Selina Todd, professor of modern history at Oxford, whose academic specialism is the rise of working-class women, has been given security guards to accompany her to lectures after receiving threats from activists. In late 2019, Essex University rescinded an invitation to Open University professor Jo Phoenix, who had been due to speak at a seminar about trans rights and imprisonment. Protesters labelled her a transphobe, and the seminar was cancelled. This is what concerns me: the labelling of people in that way, especially women. To seek and to ask is to learn, and not to be written off. At around the same time, a Jewish professor of human rights law at Reading University, Rosa Freedman, had been invited to speak at an event on the holocaust at Essex University, only for the invitation to be withdrawn because of her views on gender identity. Professors Freedman and Phoenix both received an apology after Essex University commissioned a review of its proceedings.
But it is not only academics whose freedom of expression is being restricted. A PhD student at Bristol University from the Dominican Republic, Raquel Rosario Sánchez, has been bullied and threatened for her involvement in events convened to discuss proposed reform of the Gender Recognition Act 2004. The second female rector of Edinburgh university, Ann Henderson, wrote recently of her experience of being targeted and harassed by students after she retweeted the details of an event that feminist campaign groups had organised for MPs in autumn 2018. At times she feared for her safety on campus, but received minimal support from senior management. In June 2019, feminist campaigner and journalist Julie Bindel spoke at an event at Edinburgh University on women’s sex-based rights and was attacked as she left. The individual was later charged by Police Scotland. The event was attended by a number of Members of the Scottish Parliament. Our Labour colleague Jenny Marra later said that
“never in more than 25 years of going to political meetings have I felt the intimidation that I felt then.”
In 2021, women across the UK are being censored, harassed and threatened for simply trying to debate and discuss their rights. This is a wholly unacceptable state of affairs and I call on all Members to join me in condemning these pernicious developments.
The issue that we need to discuss as parliamentarians is when freedom of speech becomes hate speech and vice versa. That is what we should be discussing in this House. We should address what is and is not legally allowed. I know that the speech I am making will probably be followed with a torrent of abuse on social media, but as Members of Parliament and legislators, our responsibility lies in speaking truth to power. Our Labour Front Benchers are right: Conservative Members tend to be hypocrites; in fact, they are hypocrites, particularly given other Bills we have seen passed through Parliament. But I understand the need for a balanced argument, and we need to be able to speak truth to power.
Mr Richard Holden (North West Durham) (Con)
First, I declare my interest as vice-chairman of the all-party parliamentary group on Durham University.
A few years ago, when I was at the Department for Education as a special adviser, I started in a roughly similar position to that of Opposition Members today. I did not think this should be a priority for Government either, but I have changed my views on that since I became a Member of Parliament. [Interruption.] Well, we will see how the right hon. Member for North Durham (Mr Jones) votes tonight and whether it will be along his party lines in defiance of an overwhelming argument from the Government Benches.
My right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) made some very clear and sensible points about cancel culture, my hon. Friend the Member for Congleton (Fiona Bruce) did the same on freedom of religion, and my hon. Friend the Member for Devizes (Danny Kruger) had some interesting suggestions on where the Government should go further. I was particularly gladdened to hear from the hon. Members for Canterbury (Rosie Duffield) and for Gower (Tonia Antoniazzi), who spoke about issues surrounding women in academia and academic freedom. The argument from the Opposition Front Bench on this hate speech has clearly been knocked down by the Government. It is a Potemkin argument. We now argue about whether the Potemkin villages ever even existed. I think we will find that the Opposition Front Benchers’ arguments do not really stand scrutiny when the Bill makes further progress through this House.
What has changed my view is recent meetings I have had at the University of Durham. As I said earlier, this is not a sledgehammer to crack a nut, as Opposition Members have suggested. When a leading academic in the politics department told me that he had been castigated by colleagues for teaching about John Stuart Mill’s “On Liberty”, I found that absolutely astonishing. When I had cases where 18 and 19-year-old kids in my constituency were being cancelled within their own student societies for airing their pretty moderate views, it really surprised and worried me.
I gave a speech at South College, Durham a few weeks ago on this subject of freedom of speech. What has really tipped me over is the concern—the right hon. Member for North Durham and I agree on many things, but we totally disagree on this—about the influence of certain Governments and their financial power within the UK’s university education system. Let us consider the example of a university with 10,000 students, 60% of whom are from the UK and 40% of whom are from overseas. In the UK today, we will often find that half of those overseas students come from the People’s Republic of China and the amount of money they pay in tuition fees is equal to the income from the 60% from the UK. There is a real issue with freedom of speech if our universities are so dependent on those foreign sources of income, and that issue is present on our campuses today. I know that because I have spoken to students and academics who have been affected by it.
The key thing is that universities just wash their faces with the cash they get from UK students; the extra cash they get from overseas students allows them to do all the extra stuff they want to do. It pays for all the fancy new buildings we will have seen going up. It pays for the extra stuff universities want to be able to do, which allows them to push themselves up international league tables. That is what is really worrying me at the moment—we have a university system that is so reliant on that cash that it cannot pursue academic freedom itself any more, without the Government standing up to tell it that it has to.
That is one of the most important points about this legislation; it is there not just to protect freedom of speech, but to promote it. This addresses a point I made when I intervened on the Opposition Front Bencher, the hon. Member for Stretford and Urmston (Kate Green). People will not put themselves forward to say things about the Uyghurs, or about Hong Kong, democracy and freedom, because they are petrified of the impact it will have on their career, faculties and students. That is why this Bill is so apposite and important. We have a duty in our academic institutions in this country, which are some of the most respected in the world, not only to protect free speech, but to promote it. That element is key, because it gives academics the freedom to challenge, and sometimes they will be challenging their own academic institutions. That is at the core of everything we have to do as we look forward.
Graham Stringer (Blackley and Broughton) (Lab)
I understand the hon. Gentleman’s point about universities being dependent on income from overseas students. What concerns me more, and it is not touched by this Bill, is that some universities are getting investment from companies such as Tencent, which is wholly owned by the Chinese Government and is deeply involved in the surveillance state. Tencent has put a huge amount of money into the Chinese centre at Cambridge University, and Professor Nolan is telling students not to criticise the People’s Republic of China. Is that not a much bigger concern? It is not covered by this Bill.
Mr Holden
The hon. Gentleman raises an interesting point. I am just pointing out the massive financial ties to foreign Governments, and there is an element of this Bill helping to start to break down that barrier. Anything that contributes to that is a good thing.
Let me wind up by saying that the hon. Member for Birmingham, Yardley (Jess Phillips) made some really important points about sexual assault in universities, and I hope the Minister has taken those on board. Some close friends of mine were affected by that, and the Office for Students really needs to take this forward. I hope she will use her good offices to that end.
Zarah Sultana (Coventry South) (Lab)
Freedom of speech does not include the freedom of hate speech. Given the content of the Bill, I would like to begin with a very brief comment on the hate speech being directed at our England stars. This England team represents the very best of a modern, multicultural nation. On and off the pitch, the players have shown their quality. Last night, they came within a whisker of winning the first men’s trophy in 55 years. They did us so proud. Off the pitch, from Marcus Rashford helping to feed thousands of working-class kids, to Raheem Sterling combating racism in sport, to Jordan Henderson standing up for trans rights, they showcase an inclusive, progressive England.
After last night’s agonising defeat, we have also seen the worst of the country, with disgusting racism targeted at our players. This is not freedom of speech; it is hate speech. But it does not come in a vacuum. It is promoted by those at the very top—right from the Prime Minister, who sanctions racism by describing Muslim women as “letterboxes” and black people as “piccaninnies” and by refusing to condemn so-called fans booing players taking the knee. I will say this, Mr Deputy Speaker: Marcus Rashford, Bukayo Saka, Jadon Sancho, three lions who represent the best of modern England, have so much more worth than the vile racists trying to drag them down.
As a young Muslim growing up during the war on terror, I was sharply aware of my community being scapegoated and subjected to surveillance. Before arriving at university, I knew that many British Muslims were treated as second-class citizens. As a student, I quickly learned that this treatment extended to the university campus and that basic democratic rights and freedoms were not afforded to everyone equally.
For students and staff who are Muslim, for staff on precarious contracts and even for student activists, freedom of speech and academic freedom are routinely restricted and denied. Those freedoms are not threatened by over-sensitive students or by academics researching the British empire; they are threatened by this Government’s policies, such as the Prevent duty, which the human rights group Liberty has said is the single biggest threat to freedom of speech on campus.
Under Prevent, students have been policed and treated as suspicious and extreme simply for taking part in mainstream debates on topics such as British foreign policy, Palestine and Kurdistan. Research has shown that one third of Muslim students feel negatively affected by Prevent, and I know that many students, including some of my constituents, are afraid to take part in political debates or even to organise events on campus. If the Secretary of State for Education is really concerned by
“the chilling effect…of unacceptable silencing and censoring”,
then he should start by addressing the main sources of that chilling effect in the Home Office and his own Department.
This Government could not care less about the way our marketised higher education system restricts academic freedom. Tens of thousands of academic staff are on precarious contracts, with some living on poverty wages. At the whim of managers, they often feel unable to speak openly or to freely shape their research and their teaching for fear of risking their careers.
Rather than pushing universities to offer permanent, well-paid contracts, the Conservatives are content to sit on the sidelines while launching their own attacks on academic freedom. Whether it is Government Members demanding that the Department for Education sack academics at the University of Warwick in my constituency, or Ministers chasing critics of Britain’s imperial past off the boards of museums and cultural institutions, or Lord Wharton, chair of the Office for Students and previously head of the Prime Minister’s Conservative leadership campaign, telling Oxford academics to
“leave their personal politics at home”,
this Government and their allies are happy to silence those who dissent from their agenda, while giving free rein to fascists and holocaust deniers to spout their hate. That is what this Bill represents.
The Bill is part of this Conservative Government’s growing authoritarian agenda, whether that is the police crackdown Bill and its criminalisation of protests, their voter ID plans and their attempt at voter suppression, their Nationality and Borders Bill and its scapegoating of migrants, or this Bill and its attack on academic freedom, which they claim to protect. Instead of the Government defending the freedom of the super-rich to dominate and exploit, it is time for a Government who advance the freedom of all.
Beth Winter (Cynon Valley) (Lab) [V]
As someone who has spent a large part of their adult life either studying or working in academia, including as an officer of the University and College Union in Wales, I am deeply disturbed by the content of the Bill. My experience in the sector has demonstrated without a doubt that universities host some of the most vibrant and intellectually challenging discussions in the country. It is simply untrue that they shut down or stifle debate. The measures in the Bill are excessive and unnecessary, taking a sledgehammer to crack a nut.
The Government’s assertion to justify the Bill—that there is a crisis of free speech and academic freedom resulting in “cancel culture”—is completely baseless, and as the Joint Committee on Human Rights recently found in its inquiry on free speech at UK universities, it is not evidenced-based. The Office for Students’ own research shows that only 0.1% of requests for external speaker events by students at English universities in 2017-18 were rejected. That action tends only to take place with the most extreme speakers—holocaust deniers, anti-vaxxers and others who hold often harmful views. I remind the Minister that universities have a duty of care to their students, including LGBTQ+, BAME and female students, and are often right to prioritise their wellbeing and their right to be free of intimidation over gifting inflammatory speakers a platform to air their views.
There already exists a strong legal framework, which imposes duties on higher education providers to ensure freedom of speech and expression in higher education. There is genuine and understandable concern that the Bill may undermine existing protections against discrimination. I would welcome clarification from the Minister on a matter raised by Universities UK regarding how the Bill will interact with existing legislation and other duties relating to free speech and academic freedom. In fact, the Bill narrows the definition of academic freedom to speak out on social or political issues, enabling someone to do so only when it is
“within the law and within their field of expertise”.
I fully support the UCU’s call for the phrase
“and within their field of expertise”
to be removed from the Bill.
I also share the concerns of the UCU and Universities UK about the statutory tort element of the Bill, which enables individuals to sue a university or student union when they believe it has failed to protect free speech. That provision is ill thought-out and should be removed.
The Bill is extremely divisive, harmful and dangerous in and of itself, but crucially it also exposes the Government’s flawed priorities. In other words, it is a very convenient distraction from the real issues facing the higher education sector: the marketisation of the sector; endemic precarious and casualised employment; attacks on the arts and humanities; insecurity of research funding, and a failure to protect staff’s right to speak out against employers. Those are the kinds of issues that this Government should be addressing if they are serious about protecting academic freedom and freedom of speech.
How could a newly appointed academic researcher on a short-term contract feel confident about speaking out in a critical but constructive manner on any issue, including an employment situation, where there is no employment protection available to them? Two thirds of researchers and almost half of teaching-only academics are on fixed-term contracts. University staff ranked casualisation as the biggest threat to their academic freedom in a survey carried out by the UCU. That instability strips many of their job security, has a devastating effect on staff morale and wellbeing, and distracts from and negatively impacts on their core functions of teaching and research.
That is forcing thousands of staff in higher education across the UK—including in London, Liverpool and Essex—who are facing the very real prospect of redundancy to take action to save their jobs and challenge the Government’s inaction and failure to recognise the very real problems facing the sector. That is why I welcomed and fully supported the reasoned amendment tabled by my right hon. Friend the Member for Hayes and Harlington (John McDonnell), which wholly opposed this ill-considered piece of legislation.
In the short term, the Government need to step in to underwrite the sector as we emerge from the covid-19 pandemic. However, in the long run, the UK Government must properly fund universities, end the marketisation of higher education and provide staff with secure employment, all of which would support their freedom of speech and intellectual independence.
Lee Anderson (Ashfield) (Con)
Now then, if we control what students in universities can listen to, we are controlling what they can think and the type of person they will become. That may work in places such as North Korea and, possibly, within the Labour party, but it has no place in our society. The Bill will strengthen free speech and academic freedom at universities. It is not the job of the Labour party or anybody else to control who we listen to. The champagne socialists, the Islington elite and the trade unions may agree with the Labour party, but most of the country do not. We fought and won a war to protect our freedoms, and freedom of speech, to my mind, is the most important freedom that we have.
Let us not forget that universities are there to supply our great country with scientists, mathematicians, doctors, lawyers, school teachers, nurses and so on, not to provide us with state-sponsored political activists who have only one opinion or one goal in life. Our young people should be able to flourish at university and be open to all kinds of debate. Let them make their own mistakes, form their own opinions and ask their own questions. We should not dictate who they can and cannot listen to.
By voting against this Bill, Labour is saying that our university students are not capable of making up their own minds. It is a bit like the Brexit debate when it told my residents in Ashfield and Eastwood that they were thick, they were stupid, they were racist and they did not know what they were voting for. Well, that ended well! It ended up with my standing here tonight.
We know that free speech is being shut down in universities in this country. Professor Jo Phoenix was due to give a talk at Essex University about placing transgender women in women’s prisons. Students threatened to barricade the hall. They complained that Ms Phoenix was a transphobe who was likely to engage in hate speech. A flyer with an image of a gun and text reading “Shut the **** up” was circulated. The university told Ms Phoenix and the event was postponed.
What about the human rights lawyer Rosa Freedman, a radical feminist law professor, whose event was cancelled amid allegations of transphobia? She received a passive aggressive email from a University of Reading student who called her views on gender politics “problematic” and warned her to “choose her words carefully”. Selina Todd, an Oxford University professor, had her invitation to a conference celebrating women withdrawn owing to pressure from trans activists who had threatened to disrupt the event.
It is a real shame that we have to legislate to allow free speech, but the biggest shame is that Labour Members will vote against the Bill and subsequently vote against free speech. Perhaps they should all come off Twitter, throw their Guardian newspapers away, leave the Tea Room, and get out there and speak to the millions of voters they lost at the last election. Let us have some free speech on the doorstep and perhaps that lot on the Opposition Benches will finally realise that they have nothing in common with the very people they expect to vote for them. Thank you very much, Mr Deputy Speaker; that is me done.
Mr Kevan Jones (North Durham) (Lab)
I was going to say that it was a pleasure to follow the hon. Member for Ashfield (Lee Anderson), but I am not sure that it was.
The point about this is very clear: we legislate in this place to improve people’s lives and to right wrongs, and, as was pointed out earlier, we base our decisions on facts. The problem with this Bill stems from the reasons we need it. The Secretary of State was asked on several occasions to provide his evidence and data for the Bill. We have heard all the anecdotes; we have just heard a selection tonight. Clearly, some Government Members watch too much FOX TV, or some other channel, for their information. We did ask the Secretary of State for the figures, but the figures have already been mentioned. In December 2020, 61 university student unions carried out the survey. Six events out of almost 10,000 were cancelled. The Government’s own data from the Office for Students show only a tiny percentage of cancellations. In 2017-18, of nearly 60,000 events only 53 were rejected, which is about 0.1%, and the cancellation of some of those events had nothing to do with people’s views.
I take great exception to what the hon. Member for Ashfield said. I am a true defender of freedom of speech. I believe in it. It is one of the things that we should be most proud of in terms of being British. We have an ability to disagree. Sometimes it can take a heated format, but we can disagree. He should not label me as somebody who is against free speech. It is people like him who will close it down. If this legislation were needed, I would support it, but I do not think that it is needed, because, as has already been said, the legislation is already in place. We know the reason why, because we have had it explained. We just had a great example of it from the hon. Member for Ashfield. This is actually about trying to use the so-called woke agenda in a political manner. It is amplifying the message, so we get a situation where anyone who dares to question what happens or who votes against this Bill tonight is said to be against freedom of speech.
Lee Anderson
I thank the right hon. Gentleman for the important points that he is making in the Chamber tonight, but the most important thing I want to thank him for is mentioning the word “Ashfield”. That is the first time ever in this Chamber that a Labour politician has mentioned the word “Ashfield”, so I thank him for that.
Mr Jones
I say to the hon. Gentleman that if he wants to make a contribution to this debate, he should read about it and properly represent his constituency.
Mr Jones
No, I will not.
We have the Education (No. 2) Act 1986, the Education Act 1994 and the Charity Commission regulations on this, all of which protect and embody the idea of freedom of speech. The Bill also gives powers to universities to regulate themselves. The hon. Member for Ashfield talked about North Korea. I am sorry, but I am vehemently opposed to Governments directing universities on what they should and should not say, do or teach. That is the beauty of academia—they are allowed to have independence —and the Bill is dangerous in that respect.
The other thing that is completely absent from the Bill is information on how it relates to some of the other obligations on universities. The hon. Member for North West Durham (Mr Holden) mentioned that he is vice-chair of the all-party group for friends of Durham University. If he is, he will have had the same briefing note that I had. The university has concerns about how it relates this Bill to its responsibilities under the Counter-Terrorism and Security Act 2015, equalities legislation and other issues. What we are going to do is put in place a regulator that will oversee that—well, I am sorry, but I do not agree with that. If there were an issue with universities and freedom of speech, I would be the first to argue for legislation, but we do not need this legislation. As has been said, what we need is to use existing legislation to enable us to find the data on what is actually happening rather than having to listen to hearsay and have one case being expanded at the expense of another. And we also need not to listen to the Policy Exchange. It does not surprise me that this legislation is from the Policy Exchange. We have already had the Overseas Operations (Service Personnel and Veterans) Act 2021. That was a terrible Bill that not only did not do what it set out to do, but took rights away from veterans we should have been protecting.
I would also like to touch on the issue of bringing law and compensation into this. I am not a lawyer. No offence to anyone who is, but I am all in favour of anything that can stop lawyers making money. This legislation is a lawyers’ picnic, frankly. It will end with huge amounts of time taken and vexatious cases. It will also lead to money that should be spent on education in universities being diverted into legal fees. I am sorry, but I am opposed to that. A point was made earlier—Durham University raised this—that an issue with the college system is that the colleges are completely separate from universities, so some may be wealthy, but others are not.
And then we have the ludicrous situation in which the hon. Member for Ashfield and others are quite prepared to spend a million pounds a year of taxpayers’ money employing 10 staff and a new director who will no doubt be part of the Conservative party job creation scheme, as we saw when Lord Wharton got the job of director of the Office for Students. That money should be going into education. There is another side to this as well: the Bill will cost £48 million and most of that will fall on universities. The money should be going to supporting universities and supporting students, and it will not be. This legislation will be a lawyers’ picnic and, actually, I think that it will get unpicked as it goes through the House because it is so full of contradictions. If there were an issue with an attack on free speech in this country, I would be one of those arguing strongly that we should act to protect it; I do not think there is such an issue. This is another example of the Government using an issue to try to put fear into people’s minds about the so-called woke agenda. They are trying to put into people’s minds a fear that anyone who questions that agenda—and I do not think that people who know me would describe me as woke—is seen as somehow not standing up for the interests of their constituency. At the end of the day, the state should not be getting directly involved in the running of our universities, deciding what they teach and how they do it. I hope that the Bill gets radically changed. If that does not happen here, it will in the other place.
James Daly (Bury North) (Con)
I want to touch on some legal points. Sadly, I am a lawyer—or, perhaps, happily I am a lawyer—and I would not touch this civil litigation with a 50-foot beanpole.
I think there is a fundamental misunderstanding of some of the points that have been raised. One of the objections put forward by Opposition Members is the issue of principle. Well, there is no objection to this legislation on principle because the hon. Member for Stretford and Urmston (Kate Green) and the right hon. Member for North Durham (Mr Jones) have both agreed that the principle behind this—the reason why it is being put into law—is good. The defence of freedom of speech is an excellent concept. How anybody can object to that is beyond me. When that argument is overcome, the Opposition return to saying, “Well, it is already on the statute book, so we don’t really need it”, but that is not a reason for not supporting this legislation.
Two examples have been given of abhorrent behaviour—abhorrent statements that could be made on a university campus that would mean that a university may well open itself up to litigation. The first is holocaust denial. Clearly, none of us wants to hear holocaust deniers or see them on university campuses. The Secretary of State—at the Dispatch Box today, on a previous occasion before the House and in any number of interviews that I could read out verbatim—has said quite clearly and categorically that this legislation cannot be used to justify the spread of holocaust denial or any other form of antisemitism on our university campuses. When a court interprets legislation, it interprets the intention of Parliament. The intention of Parliament is clear. The Secretary of State has said that no university can justify welcoming or allowing on to its campus anybody who is going to talk about holocaust denial.
James Daly
No, I will not—[Interruption.] Absolutely not; there is no dispute in respect of this issue. It is the specific intent of this legislation to ensure that holocaust denial is not covered by the free speech recommendations.
James Daly
No, I will not.
The second type of behaviour that has been mentioned—the only other example that Opposition Members could put forward—is anti-vaxxers. Now, I disagree with anti-vaxxers, but do we seriously believe that anti-vaxxers should be discriminated against through this legislation to the extent of being banned from state premises and educational establishments?
What this Bill does do, which nobody has mentioned, is put universities under a duty to make whatever efforts are “reasonably practicable” to ensure that free speech happens.
James Daly
Well, then, support the legislation if that is the case.
In respect of anti-vaxxers, if the legal duty on the university is to put in place “reasonably practicable” steps, do we think it is a better option for university vice-chancellors to put forward other speakers and insist that other speakers put the other side of the argument, or do we just simply say, or allow university vice-chancellors or whoever makes the decisions to say, “Because we don’t like your view, we’re just going to banish you and not allow you to speak”?
What this debate is really about is the regulation of legal behaviour. The law exists—the Public Order Act, the Equality Act, the Prevent legislation and other legislation—because this House has voted at different times to say that certain behaviour is against the law and that the authorities should act in respect of that. I listened to the powerful speech of the hon. Member for Birmingham, Yardley (Jess Phillips) regarding the appalling incidents of sexual harm on campuses. That is an utter indictment of universities; it is not a reason for us to allow them and have faith in them to regulate. If they cannot regulate in respect of the most serious sexual complaints, why should we have any faith in them to regulate individuals’ ability to practise freedom of speech, which is a basic right? We cannot confuse freedom of speech with other issues. If there are allegations of serious sexual assault, we should ask police why they are not investigating these things.
In Greater Manchester, which is run by the Mayor of Greater Manchester, the charge rate for serious sexual offences is around 1%. Are we seriously arguing that that appalling record of the Mayor of Greater Manchester in respect of serious sexual offences should be taken away and we should concentrate on whether university professors are regulating serious criminal behaviour? It is a ludicrous point of view.
This whole debate comes down to a central fact. I thought that some of the comments from Opposition Members were quite dystopian, saying that we should have a debate about what we as individuals think it is right or wrong to say on a university campus. How utterly ludicrous is that? If we feel that something is not to be said on a university campus—that it is harmful or makes a person feel in fear of their safety—we have section 5 of the Public Order Act 1986, which makes it an offence to cause somebody “harassment, alarm or distress”. That is all that is required to prove an offence under that Act.
It is for the law to sanction people’s behaviour, not individuals and certainly not institutions that are the beneficiaries of taxpayers’ money. This is a good Bill, it is a manifesto commitment and it is a commitment to free speech that we should all celebrate and support.
Daniel Zeichner (Cambridge) (Lab)
Let me declare some interests: I chair the all-party parliamentary university group and I represent an education city with a fantastic further education college, Cambridge Regional College; two great universities that are very different but both outstanding, and very well led by Roderick Watkins and Stephen Toope; and the University of the Third Age. We are brilliant at universities in this country.
There is so much talk of our being world-beating; we actually are world-beating when it comes to universities. Would it not be nice to have a Minister for universities rather than an Education team for doing us down? I am not saying that everything is perfect, because there are huge challenges, not least for students, who have had such a tough time and still face huge debt for an experience very different from that of those who went before. Would it not be nice to hear something positive from the Government Front-Bench team about the amazing work that staff in universities have done as they have transformed their practice to devise online courses to go alongside the traditional teaching methods? The Government could have been talking about that today, or the thorny issues around finance. Where exactly is the Augar review, beyond leaks and rumours?
As we have heard, we live in a world where international students play a huge role in the financing of our universities, but those students cannot be taken for granted. The Government could tell us today about the quarantine arrangements that will be needed when 100,000 students from red-list countries are expected in September—that is urgent; or about the impact of a 43% fall in the number of students applying from the EU; or about the challenges facing research when official development assistance cuts are biting and there is still no clarity on how the Horizon gap will be funded.
All those things matter, but for this Government the only thing that matters is themselves. How can they stoke up some more divisions to throw more red meat to people who do not like universities? It is pretty hard to take this pathetic Bill seriously. Is there an issue around free speech? Of course there is—there always has been and always will be. Labour’s commitment to free speech is uncontestable: as we heard from the shadow Secretary of State, my hon. Friend the Member for Stretford and Urmston (Kate Green), it was Labour that brought the European convention on human rights into UK law. Is free speech more difficult now, in a socially media-driven, instant communication world? Yes, but it is not just universities that face that; it is a wider societal question.
Members on the Government Benches should remember how they got their get-out-of-jail card on the vaccine: it came from universities—researchers working together, using the huge amount of detailed knowledge accumulated across institutions. Our universities are world-changing and world-beating. Are those universities calling for this legislation? Hardly. They know how difficult it is to balance the rights and freedoms of different groups and individuals because they do it every day. They have been doing it for years, since long before the “here today, gone tomorrow” lot opposite snatched power, and they will be doing it for years to come. Will there be incidents and flashpoints? Yes, of course there will, as there always have been, because freedom allows for that.
Sir John Hayes
The hon. Gentleman is making a powerful and measured speech, and I agree with him that the problem is much wider than universities. He talked about social media, as many have, and there is an increasingly vitriolic level of debate that has coarsened and damaged discourse, perhaps irreparably and certainly profoundly. However, dealing with universities is surely part of that, and that is what this Bill attempts to do. He is right to say that it does not solve everything, but it certainly does no harm and, in my judgment, it does a great deal of good. By the way, I ought to have referred Members to my entry in the Register of Members’ Financial Interests when I spoke earlier; I do so now.
Daniel Zeichner
I was happy to take the right hon. Gentleman’s intervention, but the point about freedom of speech is that it is always difficult to deal with because, as others have pointed out, freedom allows for a fair amount of offence to be given until it becomes too much and we have to respond. However, that is a judgment call. We cannot legislate for that. It is a great irony that a Government who claim to be Conservative are promoting measures that many of their predecessors would have been very quick to criticise in other countries. A commissar for free speech? Come on! But actually, this is not the Conservative party, is it, because its boss expelled those who dared to dissent, and that is where all this leads.
Those who have looked at the Bill can see the problems. I am sure the Government will not have much interest in hearing from those who actually run our universities, but it is worth repeating what they say. Universities UK has warned that those promoting conspiracy theories could easily take the opportunity to sue universities or student unions. It has also pointed out that with existing routes of redress available, the same complaint could lead to very different outcomes depending on whether an individual went to the Office for Students, which will now have a so-called director of free speech, or whether they went down the Office of the Independent Adjudicator route. As have others have said, the likely consequence of all this is that universities and student unions will err on the side of caution and steer away from anything risky. That will lead not to more free speech but to less free speech, and for those with really outlandish views, there will be a legal stick with which to beat institutions. So, good times for the crazies everywhere—
James Daly
If the hon. Gentleman thinks that universities will err on the side of caution, does he not agree that that will essentially be restricting freedom of speech, which will guarantee a law suit? The one thing about this Bill is that it will guarantee more freedoms, because if someone does not want the risk of being sued, they will allow people to speak within a university setting.
Daniel Zeichner
I have to say that I do wonder how much time some Conservative Members actually spent in universities and how much they know about how they operate. Universities work very carefully and they are very conscious of the threats and challenges to them. Believe me, they will look at this and think it is too risky, and they will not do it. That is what will actually happen, so there will be less discourse. I just hope that there are a few genuine Conservatives on the Government Benches who can see the absurdity of all this, and who must surely at times ask themselves why they have a leader who cannot work out whether it is okay for people to boo our football team or why they have a colleague who ended up supporting our national team by boycotting it, because that is where all this ludicrousness leads.
I suspect that, as my right hon. Friend the Member for North Durham (Mr Jones) said, this Bill will be savaged in the other place. I invite people to read some debates from the other place; it is astonishing to see how Conservatives from a former age are so appalled by this Government. The Bill will be savaged, but if it does make it on to the statute book, I suspect that it will be totally ineffectual and that the provisions will be unenforceable. This time last week, I was talking about the Dangerous Dogs Act 1991 in Westminster Hall, and I suspect that this will be seen as a similarly ludicrous piece of legislation in times to come. The best thing the Government could do would be to drop it altogether. Our universities and our country deserve so much better. They have, of course, glimpsed a better way, a decent way, and I would hazard a guess that in about nine months’ time we will have a glut of newborn children called Gareth, but not many Gavins.
Brendan Clarke-Smith (Bassetlaw) (Con) [V]
Last night I watched the England match with my family and, like many in this Chamber, I had never seen my country appear in a major final. We all felt that football was finally coming home, but it was not to be. But we have been here before and, as an Englishman, I have almost come to expect falling at the final hurdle when glory is within touching distance. It is important to remember that it is a team game and that blaming individuals will not change a thing, so instead, let us be thankful for our second most successful tournament ever, with the World cup only 18 months away.
There is a lot to be celebrated. How disappointing, then, to see the subsequent barrage of abuse that those unfortunate players have received on social media. Even more disappointing are the attempts by the Opposition to conflate the debate around taking the knee—and the suggestion that to be a real England supporter you must also support that—with something which is quite different and completely unacceptable to all decent people. This is the same cancel culture we see on our campuses. If people wish to, they can criticise the run-ups, the accuracy or the choice of penalty takers, but what we have seen goes beyond mere critical opinion. It is vile abuse and it should be recognised as such. Social media companies and internet service providers must do more to stamp out the cowardly trolls, and they have a responsibility to stop people doing that under the veil of anonymity. I am glad that we will be dealing with the issue later in our online harms Bill.
Many comments will be threats and abuse of a criminal nature. That is not freedom of speech or freedom of opinion, and any reasonable person can clearly see the difference. But that is what today’s debate must not be confused with. Instead, this Higher Education (Freedom of Speech) Bill will ensure that healthy and reasoned debate is protected on our university campuses. Criminal offences will remain criminal offences, including hate speech.
When hon. Members of this House wish to criticise my stance on an issue, I do not try to prevent them from speaking, I do not demand that I am given a safe space, and I do not attempt to have them cancelled because I do not like their views. Our electorates can cancel us all through the ballot box, if they so wish. That is democracy. So why on earth do we allow this type of behaviour to flourish in our universities? It is quite incredible for organisations in which academic debate and challenging the views of others are part of the experience. We now see the no-platforming of speakers and student unions getting rid of organisations that they simply do not like. We see academics being chased off campus and spiteful open letters calling for them to be removed from their positions.
Yesterday, many condemned the behaviour of a number of football fans and the violent disorder, hooliganism and vandalism perpetrated by some, yet this is not isolated to football. It was not football supporters who tried to pull statutes down or who created a situation where the University of Bristol sought to impose security costs on a student society purely for inviting the Israeli ambassador, because of the behaviour of extreme left groups on campus.
The social justice warriors are certainly not warriors, and they also have a bizarre and warped understanding of social justice. Freedom of speech allows such people, and some Members in this Chamber, the right to hold and express their views. It is a shame that they do not believe in the rights of others to hold alternative beliefs. Some have even referred to Members on the Government side of the Chamber as “evil” in the past. To borrow a saying from a colleague, I do not believe that my opponents are evil; I simply believe that they are mistaken.
Education is one of my passions. However, I can only imagine the storm if I were ever to consider a career in academia now. When I went to university, believing in free-market economics, being a Conservative or simply having a traditional view of what constitutes a man or woman would not be controversial positions. Now, I would be accused of hate speech and screamed at by somebody with bright pink hair who would demand that I be fired, locked up or perhaps both.
Our universities are world-renowned as centres of excellence. They played a key role in our fight against covid-19, as hon. Members have already mentioned, and we must be forever grateful, but they must not turn into organisations that churn out graduates who are unable to think for themselves, tolerate the views of others, or deal with the daily challenges and realities of life. As my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) said earlier about Voltaire, although Voltaire never actually said the line for which he is famous, a little like with “Casablanca”:
“I disapprove of what you say, but I will defend to the death your right to say it.”
Many of us can identify with that. It is time that some of our universities followed suit.
Joanna Cherry (Edinburgh South West) (SNP) [V]
This Bill will not apply in Scotland, and I could not give it my wholehearted support if it did, because I share some of the reservations already expressed in the debate, particularly those expressed by my hon. Friend the Member for Glasgow North West (Carol Monaghan). However, I want to be clear that, as she acknowledged, there is plenty of evidence to suggest that there are problems with freedom of speech in our universities.
In 2018, the Joint Committee on Human Rights, of which I am proud to be deputy Chair, published a report into freedom of expression in universities, in which we found that there were issues and recommended some reforms. We heard evidence about a number of problems, including attempts by students to no-platform leading feminists and LGBT activists with a lengthy pedigree in campaigning for LGBT rights, simply because they had engaged in critical debate about issues around feminism and trans politics. We also took evidence from student unions, which argued that it is necessary to limit speakers who, as they put it, “cause harm through speech”. We on the JCHR were concerned that such an approach is detrimental to free speech and could prevent certain debates and viewpoints from being heard, so we were very careful to emphasise that the right to free speech includes the right to say things that, although lawful, others might find offensive.
Sadly, since 2018 the treatment of leading feminists and lesbian activists engaged in critical debate about issues around feminism and trans politics has worsened at the hands both of student unions and of university authorities. Others have spoken about the attack on Julie Bindel, a well-known feminist activist who was attacked outside an event at Edinburgh University after she had spoken about male violence towards women. Attendance at that event effectively ended the careers of two of the Scottish Parliament’s most outstanding MSPs, my friends Joan McAlpine and Andy Wightman. At the same time, Ann Henderson, the well-respected Labour activist who was rector of the university, feared for her own safety on campus after students repeatedly falsely accused her of transphobia. The university failed to take appropriate action to deal with the hostility directed against her. That was not an isolated incident. Another well-respected feminist academic at Edinburgh University, my friend Shereen Benjamin, has faced considerable problems. Both Shereen and Ann are Labour activists. Their comrades should defend them.
I have spoken before in this Chamber about the abuse, threats of violence and deplatforming directed against Professor Selina Todd, Kathleen Stock and Rosa Freedman at universities across England. Others have mentioned a recently published report on similar events at Essex University, which identified that part of the problem is that universities are not correctly applying the law under the Education (No. 2) Act 1986. The Chair of the Joint Committee on Human Rights, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), raised that with the Secretary of State when she wrote to him about the Bill. In fairness to him, he did take the trouble to deal with her detailed concerns about the Bill, and copies of both her letter and his can be read on the JCHR website.
The important thing about the University of Essex report on the cancellation of one speaking event and the decision to rescind an invitation to another is that both of those events concerned gender-critical feminists. The report found that the university’s decisions were unlawful and recommended that apologies be made. It also highlighted that the university appeared to misunderstand and misrepresent equality laws, to the extent that the impression was given to members of the university that gender-critical academics seeking to exercise their right to free speech could be excluded from the institution.
Thanks to the Employment Appeal Tribunal’s important decision on discrimination law in the case of Forstater v. CGD Europe, we now know that gender-critical beliefs are protected under the Equality Act 2010. I think, therefore, that it is the Equality Act, more than anything else, that universities need to look at to solve this problem, because it is frequently being misconstrued or ignored in universities, and I am afraid to say that that is a symptom of a wider malaise. To quote the best-selling author and founder of the Positive Birth Movement, Milli Hill,
“those who are being dragged to the pyre are…in most cases, lifelong left-leaning, open minded, educated and tolerant women, often with a history of supporting minority groups”.
The efforts to silence us extend to violence and threats of violence, which many in a position of power are too afraid to condemn. There is not much point in pious words about standing up against the abuse of women but then doing nothing when that abuse is going on right under your nose. University authorities often look the other way or, worse still, participate in the witch hunts against lifelong feminists who simply want to make sure that women’s voices and women’s concerns are heard in important debates.
This Bill might not be the best way to deal with those problems as they represent themselves in the university sector. It is flawed but at least it acknowledges that there is a problem, and those who say that there is not a problem are simply ostriches with their heads in the sand.
Marco Longhi (Dudley North) (Con)
I do not wish to comment on the speeches of Labour Members other than to highlight one particular speech that I did find moving, which was from the hon. Member for Birmingham, Yardley (Jess Phillips). I did agree with her comments in a substantive way and I suspect a number of Conservative Members also do, so I hope the Minister is aware of that.
Ask Labour Members if they champion free speech, and no doubt they would all queue up to say, “Yes, of course”, but is there not a spectacular contradiction in this stance and their intention to vote against this Bill? The hon. Labour Member for Streatham (Bell Ribeiro-Addy) tweeted today:
“The biggest threat to free speech on university campuses is not student societies’ no-platform policies. It’s the Tory Hate Speech Bill, back in Parliament today, which threatens student societies’ freedom to choose who speaks at their events & their ability to protect students.”
Forgive me, but is not no-platforming exactly a form of censure? Is not describing the ability—the free ability—to choose a speaker simply an Orwellian turn of phrase, no doubt because some speakers must be more equal than others?
If we want universities to be centres of discussion, debate, expression, challenge and places to develop our young brilliant minds, must we not hear both sides of a debate? A young constituent of mine recently invited me to speak at his university’s Conservative Society event. Before I was allowed to speak, the students’ union insisted on assessing me, regardless of the fact that I am, like everyone else in this House, a democratically elected Member of Parliament. How can that be right?
Freedom of speech has allowed our society to evolve, to advance and to protect the vulnerable. It is freedom of speech that gave women the vote and it is freedom of speech that decriminalised homosexuality, but an unacceptable culture of censorship—a wokery, a heckler’s veto—has been allowed to develop on our campuses and to brainwash our young minds. The parliamentary Joint Committee on Human Rights released a report on freedom of speech in universities in 2018, and it found that one in four students do not share their true opinions because they clash with those promoted by their university, and a staggering 40% of students stated that views held by speakers had led more frequently to cancellation of events.
This very place is seen as a bastion of democracy and free speech underpins any liberal democracy, so I will be supporting the Bill.
Sir John Hayes
The hon. Member for Cambridge (Daniel Zeichner), whom I respect very greatly, said this has always been a challenge and a problem, and indeed he is right—there have always been challenges to freedom in universities and elsewhere—but the point is that the circumstances have changed both quantitatively and qualitatively. It is to do with the wider problem of the brutalisation of debate, but it finds form in universities in a particularly arch form, and if we do not recognise that and do not respond to it through legislation, we will be failing in our duty to universities and the students who study at them.
Marco Longhi
I thank my right hon. Friend for the intervention, which was most welcome. I wholeheartedly agree with it, and how can censorship be something that we cannot take action against?
It would be nice to know how many Labour Members agree with the Voltairean principle that has now been quoted a couple of times in speeches prior to mine—
“I wholly disapprove of what you say—and I will defend to the death your right to say it”—
or perhaps hypocrisy is the order of the day again.
Bell Ribeiro-Addy (Streatham) (Lab) [V]
The University and College Union has rightly argued that there is
“no evidence of a free speech crisis on campus”
and, in 2018, the Joint Committee on Human Rights concluded that there was
“no wholesale censorship of debate”,
so why on earth are we here? The Government want us to believe that they are engaged in some liberal defence of freedom of speech, but it is a complete farce. The Bill is in fact a threat that tramples on students unions’ autonomy, overturns students unions’ long-standing no-platform policies, narrows the legal definition of academic freedoms and fails to address the real threats to campus free speech: the ever-failing Prevent duty, casualised employment, insecure research funding and, of course, the Government. The Bill is yet another part of the Government’s authoritarian agenda. For immediate proof of that, it is almost unique in the breadth of its provision. For example, rules on judicial review state that if someone wants to challenge a decision of Government, they must have standing, which means they must be affected by the decision that they are challenging. The Bill requires no standing, so any person, any business or any campaign can sue. What a free-for-all that will create. Where are the safeguards that the Secretary of State spoke of?
I hope that, in my short time in this House, I have proved that I am a civil libertarian. I was also a full-time National Union of Students officer, a liberation officer and the union’s anti-racism and anti-fascism convenor. I defended its long-standing no-platform policy against attack then, and I am proud to defend it today. However, I cannot say how much it irks me to find myself again making those arguments I made 10 years ago and—worse—not on a student campus or at a student conference but in the House of Commons. That is further evidence of how regressive a decade of Conservative Government has been.
The Government need to realise that while we decide who should be allowed on university campuses, for many students studying at colleges and universities those campuses are their homes. What has possessed the Government to put demands in law that students must allow anybody—even fascists—into their home and safe space of living and learning? We routinely saw that whenever speakers who espoused fascist views were even promoted as coming on to campus, racist and homophobic attacks against students increased. The Secretary of State said that holocaust deniers would of course not be allowed free rein on campus, but this ill-advised Bill does not realise that, over the years, the no-platform policy has served as the main line of defence for keeping holocaust deniers and other fascists off our campuses. Who gets to decide the remit? The Government —and they routinely pass legislation that goes against our equalities legislation without even publishing an equality impact assessment. Hon. Members will forgive me for not trusting the Government to defend liberation groups even within the law. Why should students trust the same Ministers who repeatedly endorsed the booing of England players at the start of the Euro 2020 tournament? The racist abuse now directed at them was sanctioned from the very top. Students unions cannot depend on the Government to protect them, and the Bill stops them from protecting their members.
I have heard many arguments about what should be debated and how debate should expose things, but the neo-liberal, supposedly free-speech fanatics do not seem to realise that while they are in a room putting together well-informed arguments for fantastic debates, young black, Muslim, Jewish and LGBTQ people out on the streets are being victimised, verbally abused, physically assaulted and, in some cases, murdered. What exactly is there to debate? What possible arguments are there to pose? They are basically saying that those people face discrimination because they cannot argue their case well enough.
The hon. Member for Dudley North (Marco Longhi) said that we should hear both sides of any debate. Should we debate a paedophile who thinks it is okay to have sex with children? There are people who believe that children should be able to consent. Shall we debate misogynists on whether women should have equal rights to men? We have seen that on the rise with incel groups. Shall we debate people who want an all-white Britain and say that black, Asian and minority ethnic people should not have the right to live and worship as they choose, free from discrimination?
Free speech is not an absolute right. No rights are absolute in a society, because all rights come with responsibilities to others. We legislate for those responsibilities in this House. The right to live free from hate is not up for debate and it never should be. That is not stifling freedom of speech; it is exercising our human rights and defending those of others. The Bill wants to stop that. We do not expose fascist beliefs by debating them. We do not give fascists a platform to give more oxygen to their hate. If we do, we are saying that their views hold the same value as ours, and that is not true in a civilised society. The Government say that the Bill is about freedom of speech, but we know it has got nothing to do with that.
Miriam Cates (Penistone and Stocksbridge) (Con)
I rise to speak in support of the Bill and to set out why it is so important that as a society we continue to hear and engage with minority and controversial opinions.
We all know what it is like to feel challenged or discomforted, even offended, by what others say or write. This experience of offence is a negative feeling of embarrassment, anger and sometimes hurt, but on occasions this uncomfortable experience can also lead to something absolutely essential for human progress: change. I am not talking about personally offensive or targeted abusive attacks on individuals, which are clearly abhorrent. That kind of persecution and intolerance has no place in civilised society. I am talking about the kind of offence or discomfort that is felt when we hear something that is deeply challenging to our deeply held points of view. It causes us a kind of emotional pain that sometimes forces a response, but history is full of great offenders: people who put forward minority beliefs that were not initially popular, but which nevertheless they sought to bring to the attention of the majority.
Some of these great offenders were, of course, completely wrong and their controversial views have died with them, but there are many others who stand out now as heroes: Churchill, with his opposition to appeasement; Fawcett’s views on women’s rights; Darwin’s findings on evolution; Galileo’s heretical views on the solar system; Martin Luther’s challenge to the teachings of the Church. All those great men and women held views that were contentious, even offensive, in their day, but through the force of argument and in time they changed the tide of opinion and brought change—change that I doubt any of us in this House today regrets. That change came because people changed their minds. Listeners, including people of influence, heard those views. Many fought to shut them down, often violently, but enough people responded differently and allowed their attitudes to be altered.
Over recent decades we have enjoyed unprecedented freedom of speech in this country. As a result, new ideas have been thoroughly critiqued, with some being widely adopted while others are rejected. But that freedom is now in danger, particularly in our universities. We have heard Members on both sides of the House speak about alarming incidents of no platforming, particularly of women with gender-critical views.
The understandable but misguided desire to protect students from harmful views is shutting down opportunities for those with different opinions to be heard. That is misguided, because the way to prevent harm to young people who are faced with views they find offensive is not to stop those views being heard—as long as they are within the law—but to prepare our young people and teach them to respond in a mature and open-minded way so that they can criticise, debate and, if appropriate, change their minds. That is why I so strongly support the Bill, which will protect free speech in our universities and secure academic freedoms.
We do our young adults and our whole society a great disservice when we do not allow students to be exposed to the ideas and beliefs that will challenge them and allow them to grow in character and resilience. When we encounter beliefs we find difficult, we have a choice. We can shut our ears, we can react with anger or we can respond thoughtfully and honestly, considering whether our own opinions need to evolve or be strengthened. This is the path to maturity and tolerance, and to individual and societal progress. I am delighted to support the Bill.
Alex Sobel (Leeds North West) (Lab/Co-op)
Although I was stuck getting here, I have listened to a number of speeches. It is entirely normal for me to disagree with speakers and to find what they say objectionable, but I have to say that I heard a couple of speeches—not by the hon. Member for Penistone and Stocksbridge (Miriam Cates) but by other Members who spoke before her—that I felt were verging on hate speech themselves and were objectionable to a number of minority groups in this country. I felt that the quality of some of this debate was demeaning to this House.
Alex Sobel
I will give way, although I might not agree with what the right hon. Gentleman has to say.
Dr Lewis
Indeed, and that surely is the point. What really worries people on the Conservative Benches is that what starts off with the justified condemnation of hate speech ends up by saying that people speaking in a free Parliament are verging on hate speech themselves. Can the hon. Gentleman not see the slippery slope of the argument he is putting forward?
Alex Sobel
I will make an argument about the slippery slope. I think there are Government Members, and maybe even some Opposition Members, who feel that supporting the Bill will settle some old scores, make a dog whistle to people who want to hear it and give a nod and a wink to a certain sort of constituent.
As somebody of Jewish descent whose family members came from the war generation in eastern Europe, I feel strongly that the slippery slope we are going down is one that Government Members may not be able to control. I am not saying that they are like this themselves, but other forces in society will take advantage of and utilise this type of legislation in a way that the Government will cease to have control over. It will create a runaway train effect. I do not want that to happen in this country; people like me and others in this Chamber would find it a difficult country to live in.
We just need to look at what happened yesterday to three of our brave England footballers after they missed a penalty—something that happens to every footballer during their career—and the horrendous racism that they experienced. I will come back to the subject, but I was deeply uncomfortable at some of the previous contributions to the debate and I felt that I had to raise that.
During my time at the University of Leeds—I was both a student and staff member there—the two most notorious new faces of the British far right made our campus the site of their race war. Their story tells me all I need to know about why this Bill should never reach the statute book. During my year on the executive of the Leeds University union, supporters of Claire Fox, now Baroness Fox, of Living Marxism, established a free speech society to remove the students’ “no platform for racists and fascists” policy in the name of libertarianism—maybe the reason why many Government Members support the Bill.
Two unknown first-years joined the society and when the adherents of Baroness Fox graduated, those two took over the society and stepped up their activities on campus. Many known racists and fascists were seen in their company on campus. It was difficult to administer the policy and legal framework that now exists and to vet those whom the free speech society were platforming in rooms they were trying to book out.
The two people involved were Chris Beverley and Mark Collett—now two of the most notorious fascists that this country has seen. Mark Collett was tried alongside Nick Griffin in 2006; I will come back to that. They were both in a number of notorious documentaries produced in the 2000s; I suggest that Members who do not know of them should watch “Young, Nazi and Proud” to understand more about these two characters.
The issue came to a head in Collett’s and Beverley’s attempt to overturn the “no platform for racists and fascists” policy at the general meeting of the students union. It happened to be held in the refectory that had hosted “The Who” in their seminal “Live at Leeds” concert. There were easily over 300 people there. Many, many Jewish students, as well as the campus rabbi and I, spoke against the attempt to remove the policy. Collett and Beverley were the only ones to speak in favour—and in a highly inflammatory way. Their attempt was overwhelmingly defeated.
It had been clear for some time to all on campus who Collett and Beverley really were, but the mask slipped for everybody everywhere that day. If the policy had passed, Collett and Beverley would have invited figures such as Nick Griffin and David Irving, this country’s leading holocaust denier, on to campus under the auspices of free speech. The free speech society soon ran into trouble and at the following AGM the students union fully understood the issue of these two fascists but gave them a room, fearful of legal action. The meeting did not go ahead and the society, which was acting as a front for fascism by that point, was disbanded. That was due not to any policy of the students union, but to protests by students themselves.
Just five years later, at about the same time as Mark Collett was on trial with Nick Griffin at Leeds Crown court for race hate crimes, at Leeds University in February 2006, a contributor to the university newspaper Leeds Student gave an interview to Dr Frank Ellis, in which the academic expressed support for the bell curve theory that said that there were racial differences in average intelligence. The Leeds Student also published an article by Ellis, “Time to face the truth about Multiculturalism”, in which he described the Parekh report as
“a very nasty anti-white tract”.
He then went on to be interviewed in the media, and the students union put out a statement calling for his dismissal. Leeds University condemned Ellis’s views as “abhorrent”. I had left the university by then, but I went to meetings there and objected, as a member of the alumni committee, to his continued employment. Ellis was subsequently suspended by the vice-chancellor pending disciplinary proceedings, which never concluded because he retired early.
My point is that if this law had been in place, the student union and the university would never have taken any action against these radical, far-right fascists, whose only intent is erasure of diversity on the planet: the erasure of people like me, Charlotte—I am sorry, my hon. Friend the Member for Warrington North (Charlotte Nichols)—and others in this Chamber. That is why people need to be really careful about how they use free speech. Free speech is something that we all defend—we all talk about pluralism—but it can also be a cover for something much deeper and much more unpleasant, with the consequences that we all know and speak strongly against in this Chamber every year. Yesterday we marked Srebrenica Memorial Day. This Government need to be very careful on the dark road that they are taking us down.
Christian Wakeford (Bury South) (Con)
First, I apologise about my voice. Like most people, two hours of shouting at a TV screen last night has left me quite hoarse. You will be pleased to know, Madam Deputy Speaker, that that is the only reference I will make to football today.
It is a delight to follow the hon. Member for Leeds North West (Alex Sobel). Although I share a lot of his concerns with regard to the Bill, I come to a very different conclusion, which is why I rise to support it. This, to me, goes a long way towards protecting our freedom of speech on university campuses. It is absolutely right that healthy debate—I emphasise the word “healthy”—is encouraged and facilitated, and opinions challenged, but in a safe environment. In recent years, we have seen a growing concern of harassment, abuse and intimidation on our university campuses, from blatant antisemitism espoused by lecturers, to imposing security costs on Jewish student societies, to no-platforming external speakers.
Not all students and staff feel able to express themselves on campus without fear of repercussions, particularly the Jewish students. During the latest round of violence between Israel and Hamas, Jewish students faced antisemitic abuse and even death threats almost on a daily basis. A Jewish student at Glasgow University was told to go and gas herself and a Jewish student at UCL was sent a picture of herself photoshopped under a guillotine. The National Union of Students blamed Israel for the rise in antisemitic incidents, before backtracking. It is absolutely abhorrent that our universities have failed to protect our Jewish students and that students do not even feel protected by the NUS.
Charlotte Nichols (Warrington North) (Lab)
I am interested in the specific examples that the hon. Gentleman is giving, because surely this Bill would actually promote and protect the right of people to make exactly the kinds of abhorrent remarks that he is talking about, making Jewish students less safe on campus. How does he reconcile this aspect of his speech with his support for the Bill?
Christian Wakeford
I thank the hon. Lady for her intervention, but I disagree with her. As we heard from the Education Secretary himself in his opening remarks, that would not be the case.
It should be a source of shame for all of us and for every university that Jewish societies often keep their event locations secret due to concerns about the safety of students. We simply cannot turn a blind eye to the fact that our Jewish students do not feel safe on campuses here in the United Kingdom. Last year, Bristol’s student union asked for a fee of £500 to safeguard the former ambassador Mark Regev. This is not an isolated incident. It should not be down to students to provide security themselves. As I have said before, universities have not just a moral obligation but a duty to ensure that all students are protected. This must extend to securing events and putting a stop to no-platforming once and for all. It is not just pro-Israel speakers who have been no-platformed. Indeed, a former Home Secretary was previously no-platformed from speaking at events as well.
It is absolutely crucial that the Government commit to ensuring that the Bill does not become a shield for those who wish to endorse poisonous views, including, as has been mentioned many times, holocaust deniers and far-right or far-left extremists. Universities must be a safe space for all students and institutions must take their duty of care seriously. After a great deal of encouragement from the Secretary of State and others, over 100 institutions have now adopted the International Holocaust Remembrance Alliance definition of antisemitism. This is a crucial step in ensuring that universities take accusations of antisemitism seriously. While the IHRA definition is now being adopted, I am encouraged that the Bill gives some teeth to implementing it, because far too often we see a lack of implementation. Again, I refer hon. Members to what is going on at Bristol University.
Just last month, the University of Warwick assembly passed a motion to challenge the IHRA definition of antisemitism. The university—I hope that the shadow Minister will address this—has failed to condemn the motion, despite calls from Jewish students to do so. The Union of Jewish Students rightly asked:
“How can they claim they want to fulfil their moral duty to protect all members, which includes Jewish students, when this motion clearly disregards the wants and needs of Jewish students?”
I therefore ask the Minister what further steps the Government are taking to ensure that the definition is not only rolled out across all institutions but fully implemented. What more can be done to ensure that academics face disciplinary action for making remarks or supporting motions considered to be antisemitic under the definition? I refer again to Professor Miller in that regard. Lastly, will the Minister join me in condemning the incident in which the University of Bristol sought to impose security costs on a student society for daring to invite the former ambassador for Israel, and can she confirm that the Bill will help to stop repeat incidents of that nature?
Although the Bill delivers on our manifesto commitment to strengthen academic freedom and free speech in higher education, universities must now follow up and ensure that campuses are truly open to rigorous, healthy contestation of ideas or be held accountable. We cannot rest until all students feel safe on campus.
David Simmonds (Ruislip, Northwood and Pinner) (Con) [V]
One characteristic of good education settings is that there are opportunities to be challenged. Education must be a place for open minds rather than narrow minds.
Speaking personally, I found that university was an opportunity to have my view of the world challenged. As a newly minted student, I joined the Durham Union Society, a venerable debating society that is known for bringing a very wide range of speakers in front of the student body. It gave me, and thousands of other students, a chance to hear from people on a range of issues, from nuclear power to environmentalism and various forms of human rights. It gave me a chance to hear from people whose views were simply beyond the range of anything I ever heard or learned about at my school in the south Wales valleys.
I heard from Dave Nellist, the inspiration for Private Eye’s Dave Spart of the loony left, who set out a very robust defence of his view of socialism, something I had never heard or learned about in my life. I heard Peter Tatchell set out a robust defence of direct action in pursuit of his campaign about gay rights. More importantly, I heard him articulate, in a way that many, like me, will have heard for the first time at university, the long history of injustice and prejudice that needed to be addressed. We then heard and saw his commitment to that action in opposition to the appointment of a Bishop of Durham whom he regarded as having been a hypocrite on that issue.
I had the opportunity to encounter speakers representing organisations as diverse as the Monday Club on the extreme right and the British Communist party on the extreme left, and every point in between. I strongly believe that I am in good company, in that that diverse range of challenges to what I had learned and what I perceived about the world helped me to become, as I believe I am, a more socially liberal and a more enlightened person. It certainly developed my interest in and my commitment to politics.
It is clear from the engagement that I have had with constituents who are students, who are part of the academic life of many of our university campuses across the country, that there is a serious, well-founded and genuine concern that the actions of some in our university system have had a chilling effect on their ability to speak freely, to ensure that future generations of students are able to enjoy the benefit of having their prejudices and views challenged, on whichever side of the spectrum.
While I strongly welcome the fact that we will continue to have, completely unaffected by this Bill, very robust laws that tackle hate speech in all its forms and that deal with the many prejudices that we have as a society decided are unacceptable, as well as enshrined protections for people in the Equality Act 2010, through the Bill we will also have measures in place to ensure that the freedom of speech of our academics and our students and the ability of future generations to be challenged and to develop their thinking—in a way that is fundamentally important and that we see going on every day in our House of Commons and our parliamentary democracy—are preserved for future generations.
Through the Bill, we will not see a narrowing of the thinking or a narrowing of the debate in our universities, but we will ensure that they remain what they have been for generations: a place where open minds can thrive and prejudices can be challenged and where we can develop our thinking as a society in a way that then contributes to our national life. For all those reasons, it seems to me that this proposal from the Government is a sensible step. We need to demonstrate to academics and students who have these concerns that we take them seriously. If we are to be the bastion of democracy that we wish to be, we have to ensure that free speech can happen in our universities and in every other part of our education system as well. That is why I strongly support this legislation from the Government.
I hope that the Bill will bring about the great benefit of demonstrating that the United Kingdom is not just genuinely committed to tackling those who would peddle hate and prejudice in our universities and other education settings, but determined to be a place where open minds, debate and free speech can thrive for the long-term benefit of our democracy.
Taiwo Owatemi (Coventry North West) (Lab)
With the many pressing issues that universities are facing right now, such as harassment on campus, a struggling economy, the plummeting number of students enrolling and the challenges posed by remote leaning, just to name a few, I am disappointed that the Government have chosen to spend their time focusing on a complete non-issue with this Bill. Indeed, this entire debate is surplus to requirements.
In the minds of Ministers and Government Members, freedom of speech is under relentless attack, so they have decided to pass an entirely new law to protect it. We all know that in reality, that could not be further from the truth. A recent study of 10,000 speaker events on British university campuses found that only six had been cancelled—that is six out of 10,000 speaker events. I am sure that the Minister can give the number to show that that was relatively low. Four of those that were cancelled were due to incorrect paperwork. That is an admin error, so that is something that would happen regardless. One was cancelled simply to move to a larger venue. That was not discriminatory. The other was a pyramid scheme, which I am sure the Minister would not condone.
The Office for Students found that in 2017 and 2018, just 0.9% of speaking invitations across universities had been withdrawn. I therefore find it difficult to understand the fears and concerns of Ministers. We already have the Education (No. 2) Act 1986, which sets out the protection of freedom of speech on campuses. Protections for students’ right to freedom of speech already exist, and this Bill does not make any substantive change to the already broad rights that are protected.
As it is crystal clear what the Bill will fail to do, I will focus on what it will actually do. First, it introduces a new mechanism that will allow hate-filled individuals to sue a university if they feel their opinion has not been adequately heard, which will allow extremists, racists and holocaust deniers to have a voice and a much-craved platform on our campuses. Overwhelmingly, student unions and research bodies are telling us that if this Bill is passed as drafted, universities will spend much of their time and resources fighting against such individuals. They will be spending resources on areas that I am sure students and parents would prefer them not to. With the threat of a lawsuit hanging over a university’s head, there will be a new incentive to narrow, not widen debates. Universities will avoid inviting certain speakers to campus altogether—speakers who may have stimulated thought-provoking discussion—through fear of financial repercussions.
Empowering those who peddle hate speech will not help protect free speech, and the Government must seek to better understand that. Free speech is the right to say whatever one likes and the ability to think without constraints. It does not matter if one’s opinion is unpopular, because free speech is essential to democracy. Hate speech is when somebody takes that right and abuses it so that they can bully, demonise and subjugate others, which is what the Government will end up promoting.
Within this Chamber, the ability to stand up and speak out freely is both essential and cherished. This Chamber illustrates the importance and benefit of free speech each and every day. We are doing that right now in this debate. However, if a Member of the House were to begin to say something vulgar, racist or hateful, the Speaker would quickly interrupt, end the speech and demand that the comment be withdrawn. Why is that? Although we theoretically have the right to say something in a free society, we use our judgment to reject hate speech that threatens, incites, harasses and demeans, because it has no place in a tolerant world. Universities should enjoy the same latitude that we do. This Chamber safeguards itself against elevating hate speech each and every day, and I have never heard the Government try to dismantle this practice, so I ask them simply to uphold in our universities the same standards that we all work to here in Parliament.
Finally, I politely ask the Government to turn their attention to far more important issues facing higher education in this country. We are all waiting for the online harms Bill, which I am sure universities, students and lecturers will welcome, so I would be grateful if the Government could let us know when that will be coming back.
Charlotte Nichols (Warrington North) (Lab)
University students have never had such a raw deal as they do today. Sky-high tuition fees lumber them with decades of debt. Living costs soar, along with private sector rents. Thousands suffered lockdowns and virtual learning last year, without a reduction in what they were charged, and sexual harassment and assaults on university campuses are at shocking levels. But what is the issue that the Government choose to legislate on? Giving peddlers of hate speech the right to sue universities or student unions if their events are cancelled. The Minister for Universities, the hon. Member for Chippenham (Michelle Donelan), admitted that this would include Holocaust deniers and, in her words, views that would be “hugely offensive” and “hugely hurtful”.
The star of David around my neck was a gift from my friend and comrade Ria on the occasion of my bat mitzvah. It was bought from a market on the site of the former Jewish ghetto in Poland, and I wear it proudly—not only as a symbol of my faith, but as a reminder of the millions killed because they were like me. Even if Ministers try to row back from their declaration of guaranteeing platforms for holocaust deniers, will they now come up with an official list of what hate speech is protected and what is not? Will their hierarchy of hatred allow denial of the Srebrenica genocide, the 26th anniversary of which was yesterday, or will they accept that giving fascists the legal protection to demand restitution from the courts is a terrible idea?
Fascists incite hatred and oppose our right to live in a non-violent democratic society. We are not obliged to accept their bile or their attempts to fundraise and recruit when given a platform. When Nick Griffin was given a seat on a “Question Time” panel, the British National party reported 3,000 new membership applications and raised thousands of pounds. That platform did not allow his views to be challenged; it validated them and grew the cancer of extremism that he represents.
What academic merit is there in the denial or distortion of the Holocaust, or in the kind of ideology that saw a Member of this House killed? How many more people have to be murdered before we realise that these are not ideas that can be debated away? My grandfather Edward Nichols, of blessed memory, did not go to fight Hitler in the marketplace of ideas. That generation had the right idea, and we must do so too.
Communities, including university communities, are not obliged to welcome violent, degrading or dangerous lies from genocide deniers or virus deniers. This Government’s lack of commitment to free speech is made clear by their planned crackdown on protests in the Police, Crime, Sentencing and Courts Bill. This is a tawdry piece of vice-signalling to groups who wish students were not so in favour of social equality. This is a bad Bill that offers nothing to students or to society. This is a matter not of cancel culture but of consequences culture. This Bill and the rhetoric around it are nothing more than imports from Trump’s playbook in the United States, in furtherance of this Government’s nonsense culture wars.
Rightly, we do not have an absolute right to freedom of speech in this country, be it in respect of our libel laws, the criminalisation of hate speech, the Government’s push to have universities adopt the International Holocaust Remembrance Alliance definition of antisemitism or universities’ statutory duties under the Prevent strategy. Even in this Chamber, as was rightly mentioned by my hon. Friend the Member for Coventry North West (Taiwo Owatemi), we do not have freedom of speech, whether that is in the fact that when we say “you” in the Chamber, Madam Deputy Speaker, we refer to your good self, or that when my hon. Friend the Member for Leeds North West (Alex Sobel) accidently named me earlier, he got a little ticking off for it.
As my hon. Friend the Member for Coventry North West said, this is about creating a better culture of debate, so what is the purpose of this Bill? What free speech does it extend beyond the limitations in existing legislation? It does not do that, as those restrictions on absolute free speech remain in place. This was never a policy designed to address the problems in the university sector, and it is revealed as even more cynical and shoddy today as we condemn the racist abuse of our national footballers by the kind of vermin who have received tacit endorsement from the very highest levels of government. As Tyrone Mings rightly said, this Government do not
“get to stoke the fire at the beginning of the tournament by labelling our anti-racism message as ‘Gesture Politics’ & then pretend to be disgusted when the very thing we’re campaigning against, happens.”
This Bill is yet another dog whistle from a Government who are unleashing forces that they will not and cannot hope to control. Let us scrap it and move on to things that really matter to our constituents.
Mary Kelly Foy (City of Durham) (Lab) [V]
I am pleased to be speaking in this debate as chair of the all-party group for friends of Durham University.
Let me be clear: I support freedom of speech. I want students and academics to feel comfortable discussing and promoting unpopular views in order to challenge conventional wisdom. After all, that is a vital part of university. However, I do not believe that freedom of speech should mean freedom from consequences. Under this legislation, universities and student unions could be forced to roll out the red carpet for holocaust deniers, transphobes anti-vaxxers and others with deplorable views, and if they do not, they risk being fined or sued. This is not a free speech Bill; it is more of a hate speech Bill.
Aside from being problematic morally, it is not clear how this legislation will work in practice. Durham University has told me that it still does not know how it will fit in with its existing duties. For example, the university subscribes to the IHRA definition of antisemitism, but now could be compelled to host holocaust deniers or face sanctions. Alternatively, speech around gender identity that might be allowed under this legislation could be in violation of the university’s policies on equality and trans rights. The university could therefore be forced to break its own codes of conduct, which are designed to protect staff and student welfare, or face fines. This is clearly wrong. Does this legislation supersede universities’ duties under education legislation, Prevent and employment law. It is all a bit of a mess.
What is especially frustrating is that this Bill is aimed at tackling a problem that does not really exist. Although Tories love to decry the so-called cancel culture at our universities, a study of 10,000 university speaker events found that just six were cancelled. As we have just heard from my hon. Friend the Member for Coventry North West (Taiwo Owatemi), four of them were cancelled for incorrect paperwork, one was cancelled to upgrade to a bigger venue, and one was a pyramid scheme. The words “moral panic” come to mind. In fact, Durham University has informed me that, far from encouraging a wider range of views, the threat of sanction could actually result in a more risk-averse speaker programme. The thing that really irritates me about this legislation is that there are so many other issues in higher education that need fixing. Freedom of speech is threatened less by wokeness and more by insecure work and limited funding. Students are concerned about the cost of rent, tuition fees, levels of sexual harassment and so much more, so where is the legislation to address those issues?
The Bill shows that the Government are more concerned with stirring up a culture war than addressing the real problems in society. It will only make life harder for students and staff in Durham who were already over-burdened by introducing more bureaucracy into education. It is just the latest example of the Government’s twisted priorities.
I will finish by saying to the Government: stop playing politics, scrap this Bill and introduce some measures that will actually improve higher education.
Paul Blomfield (Sheffield Central) (Lab) [V]
I have to confess that I have some sympathy with the Universities Minister, recognising that she will soon be winding up this debate. She is a decent Minister who knows the real issues facing our universities and their students, and I am sure that she knows that this Bill is nonsense. She has certainly struggled to explain its impact. She knows and she has admitted that it will protect some hate speech, but she is having to defend it to play her part in stoking up the culture wars that are at the heart of this Conservative party’s electoral strategy.
Let us be clear: free speech is at the heart of our values. We on the Labour Benches have a long record of protecting it, but it has too often been used by the Conservative party as a political football. I remember 35 years ago, with unemployment at a post-war high of 14% amid the deep gloom of that Tory decade, when Margaret Thatcher produced the Education (No. 2) Act 1986, requiring universities to uphold freedom of speech. I played my part then in drafting the code of practice for the University of Sheffield to ensure our compliance with the legislation. The Act was followed by a series of speaker meetings orchestrated by Conservative students to provoke a reaction and fuel division.
Then, almost 10 years later, with John Major’s Government struggling, out came the free speech dead cat again with the 1994 Education Act, which this time decided that too much free speech of the wrong sort was a bad thing and tried to limit the activities of student unions.
Now, with the mismanagement of covid leaving the UK with one of the worst recessions and worst death rates in Europe, the Government’s flawed Brexit deal hitting businesses in every sector, people at work facing insecurity and rising inequality across society, free speech is again rolled out as a diversion, a “look over there” tactic. With no irony, they are introducing this Bill the week after Ministers were cracking down on free speech with the anti-protest provisions of the policing Bill.
As the Universities Minister acknowledged on Radio 4, this is a Bill that empowers holocaust deniers and other purveyors of hate speech by giving them the powers to make vexatious complaints against universities. As if that did not do enough to fuel the culture war, it also creates a new director for freedom of speech at the Office for Students with a full-time responsibility to keep the issue alive. No doubt it will be another job for another Conservative crony with undue influence over academic debate. Does the Minister really believe that this is the most important addition to the IFS team? Is it more important, for example, than a director of learning remediation to deal with the lost learning experiences for both new and current students as a result of covid? Does she not recognise that the financial and legal liability in the Bill could be a chill factor on open debate, requiring universities to spend more on lawyers and less on students, but, of course, the Bill is not about the real priorities. I represent both of Sheffield’s universities and more students than any other Member of this House. Over the last year, I have received hundreds of emails from students, from parents with children at university, from staff working hard to provide the best possible learning during the pandemic against a backdrop of confusion and late decisions from the Government; I have received none on free speech.
We could have spent our time better today looking at the issues that are being raised. We could have discussed the recommendations of the report by the all-party parliamentary group for students, which involved two of the Minister’s Conservative predecessors and argued for a learning remediation fund to assist universities to provide access to experiences, specialist facilities and equipment for skills development and more—those things that students have missed during the pandemic. We could have discussed our case for proper hardship funding in respect of rents paid for unused accommodation by students who have lost out from part-time jobs that dried up in hospitality and retail sector. We could have considered why students in England have been treated far worse than those in Northern Ireland, Wales and Scotland, with an average of only £43.70 allocated per student in England for hardship support while those in Wales received an average of £400 per head, Northern Ireland £500 per head and Scotland £80 per head plus other support packages.
We could have talked about the issues for staff who have faced enormous pressure and made huge efforts to move entire courses online, delivering the best possible teaching but knowing that some of the learning experiences would inevitably be lost. We might have asked why the latest guidance for teaching in the autumn has been issued too late, after timetabling has been done, making things more difficult than needed. We could have been considering the quarantine arrangements for the new session, as those of us on the all-party parliamentary group for international students have been arguing. We could have discussed the vital role that our universities will play as we rebuild our economy after covid. Instead, we are faced with this sorry Bill. The Government really need to deal with the priorities that we face. I hope that they will drop this unnecessary Bill.
Catherine West (Hornsey and Wood Green) (Lab) [V]
Despite finding no time to legislate for social care reform or employment rights, the Government can find time to protect antisemites and people whose only aim is to cause deep hurt and offence. These are clearly the wrong priorities for us as a Parliament and for the country. The Government should drop this Bill, which has dangerous and deeply troubling consequences, as my hon. Friends the Members for Leeds North West (Alex Sobel) and for Warrington North (Charlotte Nichols) so eloquently pointed out.
It is a real pleasure to follow my hon. Friend the Member for Sheffield Central (Paul Blomfield), who is on the all-party parliamentary group for universities and chairs the all-party parliamentary groups for students and for international students. I thank him for all the work that he has done in the House to highlight the plight of students. That brings me to what is really troubling my constituents.
No. 1: Jewish families have contacted me as a constituency MP, very worried about the welfare of their children and young people in universities where they have faced abuse. I do not believe that the current Bill seeks to address that issue. In fact, it could make it worse. I have also had briefings from the organisation Tell MAMA, which has explained how Islamophobic attacks have happened against students on university campuses. I am not sure how this Bill would address those sorts of concerns. Not only that, but first-year university students have been contacting me for the last 12 months—first, before they gained access to university, during the exams fiasco—asking how on earth the Secretary of State could have kept his job despite such a huge level of incompetence.
There have been images on our television screens over the last 12 months of international students queuing around the block for food banks because they have not been able to get part-time work due to covid. The broken loans system is an international disgrace. The Government really need to address the financial pressure that students are under. My local university, London Metropolitan University, offers courses for nurses. If nurses need assistance while they are studying nursing—which, of course, is a very much needed occupation with covid and was beforehand due to the shortage of nurses—the fees are still £9,000 a year. Of course, there are also other living costs over the three years. Nurses can come away with a loans bill of £50,000 and then start at the local hospital—Whittington or North Middlesex—on a starting income of about £25,000. How nurses could ever pay off those ridiculous loans should trouble the Government, not this Bill.
Where are the results and outcomes and the action that the Government will take as a result of the Augar report? Or is it just growing dust and mould on shelves? What about the need to face down the uncertainty and try to clarify the situation for students who are studying in September 2021? We have 10 days left before recess in which we could debate urgent issues such as whether students will be studying under a hybrid system; whether they will be studying in person or remotely; whether they will have to undergo quarantine if they come in from abroad; what will happen to European student numbers, which have dropped because of Brexit; how Horizon will be funded; and how the short-term contracts that currently face so many women academics can be put on a proper employment footing.
While we are on the subject of women, how will the issues for women students raised so eloquently by my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) be addressed? These are real questions. We need proper services for women who have experienced sexual violence, and we need firm action against perpetrators.
Universities are not the enemy. This Bill will cause more paperwork and bureaucracy for a sector that is already struggling. Instead, we need a proper debate on the issues that matter. I hope that the Government will listen to the contributions made this evening, including the serious ones from my hon. Friends the Members for Leeds North West and for Warrington North about how determined a small far-right group can be to use legislation that is not carefully worded to cause mayhem, as well as the contributions from my hon. Friends the Members for Sheffield Central and for Cambridge (Daniel Zeichner) about how we can work together. We need to see urgent action and to be in the real world, not stoking culture wars.
Sarah Owen (Luton North) (Lab) [V]
It is a pleasure to follow my hon. Friend the Member for Hornsey and Wood Green (Catherine West) and her heartfelt sentiments on behalf of students in her constituency. During the pandemic, students from Luton North have got in touch with me about so many of the worries that the Government have put in front of them. There was exam chaos last year, and students worry that they will see the same repeated again this year. They were sent back to covid-filled universities last September and have had to pay for accommodation that they have not been in because of the pandemic. Some universities have moved to permanent remote learning, for the same costs as an in-person degree. There have been missed graduations and freshers weeks, a growing sense of crisis in young people’s mental health, and all the rest of it.
This has been a hard time to be a student. But can the House guess how many students from Luton North have got in touch with me about no-platforming or the need to balance out the debate on anti-racism and anti-fascism? Zero. With everything that is going on at the moment—everything that is facing young people—how can this Bill be a Government priority?
One thing that people in Luton North do talk to me about is the impact of the Prevent duty on campuses and in our schools. Of those who reported being affected by Prevent, 43% felt unable to express their views or be themselves on campus. Only a quarter of Muslim students say they feel entirely free to express their views on Islam in university contexts. This means that Muslim students are less involved in student democracy, more likely to feel there is no space for them and less comfortable engaging in political debate on campus. That is simply not right.
Prevent is the real block on freedom of speech on campuses, but it is mentioned only briefly in the Bill’s 21 pages. Given how students, and Muslim students especially, feel that their freedom of speech is being restricted on campus by Prevent, I hope that the Government will change the Bill to help all students to feel more welcome on campus. Seriously: how can a Government talk about free speech when they actively seek to criminalise young people who talk and share opinions on issues that we should all be talking about, from Palestine to plastics in our oceans?
The Government simply cannot have it both ways or take people for fools. This Bill is not really about freedom of speech though, is it? It is about stoking a culture war. It is about enabling those who profit from hate, silencing young Muslim students and students who care about climate change. The Bill is nonsensical and hypocritical, like the Home Secretary’s attempt today to condemn the same sorts of racism that the Conservative Government have courted and continue to stoke with divisive Bills such as this and the upcoming Nationality and Borders Bill.
What it boils down to, ultimately, is that Conservative Members are worried—really worried—about the fact that even when they won a landslide victory in the election, only 22% of 18 to 29-year-olds voted for them. That is not because young people are a bunch of liberal, snowflake, red, left-wing, knee-taking, no-platforming work warriors who need to hear balanced debates and will then, all of a sudden, discover how to vote Tory. No: it is because since we last had a Labour Government, 11 years ago, they have seen their fees more than trebled and their education maintenance allowance axed, and most of them are stuck renting at extortionate cost with little prospect of owning their homes in parts of the country.
While we talk about values, young people see a Home Secretary obsessed with deportations and not their own safety. They see a diversity-bashing Prime Minister and a dog-whistle Tory party which spends its time insulting even our English national football team for having the audacity to speak out against racism and try to get food into the bellies of kids who are going hungry because of the Government’s shameful policies. No amount of so-called balanced debate will ever cancel out those facts, no matter how hard the Government try to punish young people in this country.
If the Conservative party really wants to fix its electoral prospects with the optimistic, dynamic, hopeful and yes, sometimes radical new generation of our country, perhaps it should stop stoking a culture war and just get on with helping those young people to live freely and securely and realise their ambitions, just as a Labour Government would do. Young people want and deserve hope, not hate.
John McDonnell (Hayes and Harlington) (Lab)
It is the principled eloquence of my hon. Friend the Member for Luton North (Sarah Owen) that gives me hope for the future of our country. I feel that the country is safe in the hands of her generation and people like her.
I have listened to the whole of the debate, and I say this. We are in the midst of what in other eras we would have called a plague. Nearly 130,000 members of our community have died. Many of them faced appalling deaths, alone, isolated from their loved ones. Moreover, poverty runs rife among our people. More than 40% of the children in my constituency are living in poverty. It took a footballer to force the Government to act to secure a basic meal for many of our children, and what did he get last night from some of the racist scum populating our country? More racist abuse.
With so much scarring the lives of many of our constituents, with so many wrongs to be righted, what is the House debating? A proposal for a law to legislate against behaviour when there is barely any evidence that it exists. The Office for Students found
“no evidence of free speech being systematically suppressed”.
It went on to say:
“Our experience to date is that providers are working hard to be compliant with their duty under section 43 of the 1986 Education Act.”
Selina Todd has been referred to tonight. She is my friend; I helped her to launch her recent book. I was contacted before the event by a students club urging me not to attend and not to participate. I went ahead, because, as I explained, disagreement with Selina was best dealt with in discussion, and it was left at that: an agreement to disagree.
If any incidences arise of the suppression of free speech, laws and institutions already exist to protect freedom of speech in higher education. There is the Human Rights Act, which, I remind the House, the Conservative party voted against. The Education (No. 2) Act 1986, passed by a Conservative Government, contains section 43, which has been referred to and which requires universities to
“take such steps as are reasonably practicable”
to secure freedom of speech. There are already regulatory bodies to ensure that those provisions are protected and enforced. The Office of the Independent Adjudicator deals with student complaints that cannot be resolved through internal processes of individual universities. Likewise, if academic freedom is being infringed, employment law and employment tribunals can address that.
This is interesting and I have not witnessed it very often, but Universities UK, the National Union of Students, the University and College Union and even the Russell Group are united in opposing this legislation. I say to the Government: do not insult the intelligence of Members of this House or, more importantly, the intelligence of the British people. This is a grubby political stunt, worthy of the derision it has received tonight. It is a propaganda exercise in this Government’s persistent provocation of the culture war, as many Members have suggested. But how far does the logic of this policy go? Who is next—further education establishments, schools, Government-funded charities and community groups? If not them, why are the universities being singled out? The logic of this policy is ludicrous.
If Ministers want to know the real issues in universities, they should go to Liverpool and Leicester and speak to the lecturers who have been forced on to picket lines because they are being sacked. They should visit any college and talk to lecturers about how their profession is being casualised, their wages frozen and cut, and their pension put under further threat. They should speak to the University and College Union and see what its members are up against at the moment. None of the issues that are so relevant to higher education, students and lecturers is being addressed by the Government, who are more interested in divisive culture wars than in solving the real issues faced by our universities and the people of this country.
The legislation should be dropped. I am fearful. As others have warned, be careful what this Government wish for, because they could open up serious division in our society and on our university campuses, and open up a can of worms that the fascist right will exploit.
Jim Shannon (Strangford) (DUP)
I seem to follow the right hon. Member for Hayes and Harlington (John McDonnell) in various debates, but I have to say that the content of his speech was very much the opposite of what I want to say.
I will explain my specific point of view. I do not take for granted the right to speak and to speak freely. I treasure and cherish the right to do that in this House. Whenever I speak, I know that there are many in this Chamber who may not agree with me, and I accept that because I understand that we are all different and have different points of view. That is their right, but the fact is that that does not take away my right to speak, as long as I speak with courtesy, manners and respect. I have always tried to do that with everyone in this House, even when my opinion might differ from theirs, and to express my views in a way that is every bit as heartfelt, strong and sincere as them. I have always maintained that freedom of speech does not mean freedom to berate, belittle or bad mouth individuals, but we must be allowed to hold different opinions in a respectful manner.
I am referring to the intrinsic rights that we hold dear. Every day I look at the world and I grieve when I hear someone say, “If you don’t agree with me, you shouldn’t speak.” I do not subscribe to that view, which seems to be most strongly held in universities throughout the country. That is why I believe that the Government’s stance is correct and proper, and why I will support the Bill’s Second Reading and cast proxy votes on behalf of my party colleagues as well.
We must remind people that they must hear if not accept other arguments. If we continue to raise generations who believe that their opinion trumps others, that they are right and others are wrong, and that to disagree with them means to hate them, we will find ourselves in a very different United Kingdom of Great Britain and Northern Ireland.
We all long for a place of tolerance, which needs to be given to all people, to those who believe in no gods and those who believe in one God—as I do, because I have a faith and I believe very much in it. I know that others in this Chamber have the same faith, while others have a different faith. Each person has a right to speak of their faith and belief.
I am chair of the all-party parliamentary group for international freedom of religion or belief. We speak out for those with Christian beliefs, for those with other beliefs and for those with no beliefs at all. Why do we do that? Because we have respect for other people. I do that on behalf of Christians, Hindus, Muslims, Ahmadis, Jews, Baha’is and Shi’as because I believe they have the right to their beliefs as I have a right to have my belief. I will speak as strongly for them as I do for people of my own belief, because that is what I believe and what I seek to achieve in this House. I understand that that is what the Government are trying to achieve.
To provide some examples, I read of a shocking case against street preachers—I say this because I am a Christian and I have strong faith—who were drawn into speaking on abortion and other sensitive issues in an attempt to silence them having their rights upheld by the rule of law. I will quote what the judge said in his deliberation in one case, because it is important to have it on the record:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence.”
We should be able to say words without bringing people to anger. He went on:
“Freedom only to speak inoffensively is not worth having.”
In Northern Ireland we had the case, which was known worldwide, of the Ashers cake sale. I will not rehearse the case in the House, Madam Deputy Speaker, but I just want to put this on the record. It was a case where those with a strong faith like myself were taken to court for not baking a cake for a certain group of people. They took their case to court. The Christian Institute helped them and they won their case, but those people were dragged through the court because they had a belief. This is about respecting other people. I just see in society today that so much happens in a different way. This is a principle that we must live by and I believe it should be clear in universities.
Today is 12 July, Madam Deputy Speaker, and in Northern Ireland we had a celebration of Orange culture. I am wearing my lodge tie—Kircubbin LOL 1900—because I came straight from the parade on to the plane for this debate. We had a fantastic celebration of our Orange culture in Newtonards, as there was across the whole of the Province. The people who watch those parades—I know them, because it is my constituency—are from all sides of the community. They are there to celebrate and enjoy it, and to have respect for other people. What a great thing it is to have respect for other people. I believe that is an example of people from all communities coming together. It may not necessarily be something they want to be a part of themselves individually, but they are happy to come along, support and enjoy not just the good will as there was in Newtonards today but that time together—[Interruption.] I apologise, Madam Deputy Speaker. I did not realise there was a time limit— that is my fault. I will come to an end. My apologies.
I will finish with this quote from the Christian Institute:
“Freedom of expression is central to the health of a democratic society. It allows us to seek truth and object to injustice. Without free speech, a society effectively closes the door to the exchange of ideas that can lead to positive change. So we need to be vigilant to protect this vital freedom for future generations.”
Madam Deputy Speaker (Dame Rosie Winterton)
Order. I thank the hon. Gentleman.
Jim Shannon
Thank you, Madam Deputy Speaker. All I want to say is that I support the Bill.
Claudia Webbe (Leicester East) (Ind)
The Bill is a damaging non-solution to a non-existent problem that only exists in the minds of this reactionary Government and their outriders. Trade unions, led by the University and College Union, rightly argue that there is no evidence to support the notion of a free speech crisis on campus by what the Government deem to be intolerant or even oversensitive students and staff. A 2019 Policy Exchange report, which claimed to find evidence of a free speech campus crisis and which was cited repeatedly in the Government’s own White Paper, which informs much of the Bill, has since been discredited. For instance, one of the report’s main examples of no-platforming at Cardiff University did not happen at all—the event went ahead as planned.
Democratically elected student unions who represent their student bodies much like trade unions in the workplace have long adhered to a no-platform policy formed in response to the fascist groups who sought to exploit and subvert democratic platforms to promote hate, racism, fascism and holocaust denial. The Government do not understand that if someone is allowed free rein to espouse racist, hateful or discriminatory views without challenge, it can directly contribute to a culture where people of my class, my race and my gender no longer feel safe. Yet no-platforming is an incredibly rare outcome: of the 62,000 requests by students for external speaker events at English universities in 2017-18, only 53—less than 0.1%—were rejected by a student union or university. Despite that, the Government have created a self-serving narrative of an imagined free-speech crisis to force through this authoritarian legislation.
The Bill fails to secure for staff the ability to speak out against their employers and will empower the Office for Students, with appointments by the Government, to interfere politically in university and academic life, thus seriously imperilling academic freedom and democratic norms. It also narrows the legal definition of academic freedom in a way that is almost unprecedented in British law. Unlike rules on judicial review, there will be no standing requirement, so any person, business or campaign can sue universities. The threat to freedom of speech and academic liberties therefore comes not from the imagined free-speech crisis but from the Government and their hugely disproportionate legislation.
As the University and College Union rightly highlights, the much graver threats to academic freedom take the form of casualised employment, sustained attacks on the arts and humanities, insecurity of research funding, the Prevent programme, Government interference with the academic research agenda—especially on decolonisation —and targeted redundancies. More than two thirds of researchers and almost half of teaching-only staff in the higher education sector are on fixed-term contracts. Widespread insecure employment strips academics of the ability to speak and research freely and curtails chances for career development. Indeed, the proposed compulsory redundancies across England’s universities including at Leicester, Liverpool, Aston and Chester, are alarming. In Leicester and across the UK, university management must listen to the workers’ demands and withdraw compulsory redundancies. The Government must end the marketisation of higher education, which restricts academic freedoms, and instead encourage universities to work constructively with trade union representatives to protect higher education livelihoods.
Many aspects of higher education need urgent redress. For too long, universities have been treated as private businesses and left at the mercy of market forces while top salaries have soared and students have paid more for less. Tuition fees have trebled and maintenance grants have been scrapped, leaving the poorest graduates with an average debt of £57,000. Education must be a universal right, not a costly privilege. The Government must properly fund our universities, scrap tuition fees and cancel student debt. Instead, they are pushing through this legislation that solves none of the real issues facing the higher education sector and will instead compound the problems that they claim they wish to solve. They must end their divisive culture wars, stop stoking the fires of hate, abandon the power grab over the higher education sector, commit to properly supporting the freedom, wellbeing and funding of all staff and students and scrap altogether this free hate speech Bill.
Matt Western (Warwick and Leamington) (Lab)
I thank everyone who has participated in today’s debate. The Bill uses a sledgehammer to crack a nut—so said my hon. Friend the Member for Canterbury (Rosie Duffield) and the hon. Member for St Albans (Daisy Cooper). As my hon. Friend the Member for Stretford and Urmston (Kate Green) succinctly put it, the Bill will result in legal protection for hate speech.
With this Bill, the Government are seeking headlines. The Bill is mostly about headlines, but of course Labour supports free speech. Labour is the party that has done more than any other when it comes to free speech—just look at our record. In fact, Labour introduced two significant pieces of legislation in this regard: the European convention on human rights, and the Equality Act 2010. Without exception, every one of my colleagues has risen to extol their support for free speech.
The Government are fooling no one with their claims for the Bill, as was laid bare by the contributions from my hon. Friend the Member for Cambridge (Daniel Zeichner) and my hon. Friend the Member for Sheffield Central (Paul Blomfield), who chairs the APPG for students and who talked about the numerous attempts by successive Conservative Governments to use the free-speech dead cat. Many will have listened intently to my hon. Friends the Members for Leeds North West (Alex Sobel) and for Warrington North (Charlotte Nichols), who made it absolutely clear that this legislation would facilitate the likes of David Irving, Nick Griffin and others to spew out their antisemitic, racist hate speech on our campuses. My hon. Friends asked what hate speech will be allowed. Both called the legislation dog-whistle politics, over which the Government will lose control. What we have before us would be more aptly titled the hate speech protection Bill—a piece of legislation that would protect antisemites, holocaust deniers and people whose only aim is to cause deep hurt and offence.
The Government claim to be advancing the people’s priorities, but this issue is certainly not one of them. One would have thought that the Government would prioritise an inquiry into the covid pandemic; the greater number of challenges that the higher education sector faces; the impact of the pandemic on education, as we have heard; the mental health crisis; or the fact that violence against women is endemic. On the last point, my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) asked the Secretary of State about his failure to address violence against women. She pointedly asked where that Bill is, but the Secretary of State remains silent.
My hon. Friend the Member for Nottingham South (Lilian Greenwood) asked why the Government have not prioritised support for students throughout the pandemic, which has exposed enormous inequality. My hon. Friend the Member for Luton North (Sarah Owen) spoke of the ongoing crisis in mental health on our campuses and asked why it is not a priority. Instead, the Government have manufactured a Bill to once again distract from their own failings. They claim that they have evidence and data, but as my right hon. Friend the Member for North Durham (Mr Jones) said, the Government are in an evidence-free zone.
As my hon. Friend the Member for Coventry North West (Taiwo Owatemi) said, the Bill is motivated by the cancellation on university campuses of just six scheduled events out of 10,000 last year. Four of those were cancelled due to incorrect paperwork, one was moved off campus, and the other was a pyramid scheme. As my hon. Friend the Member for Hornsey and Wood Green (Catherine West) and my right hon. Friend the Member for Hayes and Harlington (John McDonnell) asked, why is the Secretary of State so attentive to a virtually non-existent problem? Why was the Secretary of State not fighting his corner for the £15 billion of catch-up funding that was proposed by Sir Kevan Collins, rather than meekly accepting the £1.4 billion pittance? He would rather focus on six, or truly two, cases where people were not heard on campus.
The Bill is a charter for hate speech. Many people, including my hon. Friend the Member for Coventry South (Zarah Sultana), reminded us that the Minister for Universities, the hon. Member for Chippenham (Michelle Donelan), was unable to deny that the Bill would create a legislative safeguard for holocaust denial. Why are we devoting our attention to a Bill that provides legislative backing to help holocaust deniers, racial supremacists and other preachers of hate gain special access to university campuses? The simple truth is that the existing legislation—section 43(1) of the Education Act 1986, the Human Rights Act 1998, the Equality Act 2010, the Counter-Terrorism and Security Act 2015, which includes Prevent duties, and the Higher Education and Research Act 2017—already covers the issues that the Bill seeks to address. The 2017 Act established the Office for Students and states that the governing body must take
“such steps as are reasonably practicable to ensure that freedom of speech within the law is secured within the provider.”
My hon. Friend the Member for Cynon Valley (Beth Winter) questioned why, despite those existing powers, this Bill seeks to create a range of new obligations on higher education providers and to give the OfS new powers to fine an institution.
My hon. Friends have questioned throughout the new tort enabling individuals to seek compensation through the courts, which will result in universities and student unions having to spend more significant time and money fighting legal battles against vexatious and frivolous claims. What is the unintended consequence? Institutions and student unions will naturally become risk averse and avoid inviting speakers for fear of financial repercussions if they are subsequently cancelled. Remember that many HE institutions and colleges are actually quite small—maybe 2,000 or 3,000 students—and will certainly not be able to cope administratively or financially with the additional burdens placed on them. The result will be fewer speakers, fewer debates and an overall reduction in free speech.
Then there is the threat to academic freedom with the inclusion of a new qualifying concept of
“within their field of expertise”.
Perhaps the Minister would elaborate on how academic freedom will be limited in practice and on who would decide. Increasingly, and I have to agree with the right hon. Member for Haltemprice and Howden (Mr Davis), this begins to sound like the McCarthyism that started in the US in 1950s, but it is McCarthyism against our university sector. As we have heard repeatedly from Labour Members, this is a Bill that claims to safeguard, yet perversely will have the reverse effect in numerous unintended consequences. The idea that this Bill could actually facilitate holocaust deniers to speak on campus should itself send a chill through the public consciousness. Likewise, it would enable other anti-science brigades to hold court on campus. Perhaps I could paraphrase the late Donald Rumsfeld, and suggest that there may be intended unintended consequences. That is to say that the Government may not have fully thought through the forms and scale of damage to the higher education sector, but it seems they would not be dissatisfied with the turmoil of litigation and the financial impact they have unleashed, because this is the precursor to their attack on the sector.
Finally, let me turn to the Office for Students and its central role. If we needed to understand what was going on here, we could do no better than start with the appointment of the new chair to the supposedly independent OfS. I know the Prime Minister is a recent convert to the love of dogs, but appointing his poodle? Of course, one of Lord Wharton’s first acts was to make an £8,000 donation to the Conservative party, which is two months’ pay from his two-day-a-week job. Now we have what many are describing as an “Office for Stooges” overseeing higher education, and that is how free and independent speech will be in future. It is a body whose purpose now is to do the Government’s bidding, particularly when central to this legislation is the appointment of a tsar for free speech and academic freedom. That is chilling—one person with all those powers.
I will be voting for our reasoned amendment. Given that there is no serious evidence to suggest there is a problem with freedom of speech on our campuses, instead of addressing the urgent problems faced by students and higher education institutions, the Bill is yet another case of the wrong priorities from a Government who seek to divide rather than unite. I invite the Minister to explain why the public should trust this Government when it comes to free speech. After all, this is a Government who shut down Parliament illegally—this place, illegally—as well as a Government who interfere with the independent selection of members of parliamentary bodies and the selection of museum trustees. They are even a Government who tell the National Trust not to explain the history of certain of its properties that were funded on the proceeds of slavery. That is sinister.
The Government should drop this Bill and get on with addressing the urgent needs of the country, where people are more concerned about how they are going to pay their bills this week and this month, and where inflation is ripping through people’s hard-earned income, with an economy that has become so distorted and so riven by inequality in the past 11 years that we the people were more vulnerable to the pandemic even before the Government managed to mismanage the crisis. The public simply want good government and a Government who understand that politics is all about priorities, and that is why I urge all Members to vote for our reasoned amendment.
The Minister for Universities (Michelle Donelan)
We have heard a range of views today, but the House is united in an understanding that free speech is the cornerstone of democracy and a liberal society. That was passionately articulated by my hon. Friend the Member for Congleton (Fiona Bruce), my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) and many others, who shared an endless list of examples of the curtailment of free speech on our campuses.
Disappointingly, though, there was disagreement from those on the Opposition Benches over the role that the Government should take to protect and promote free speech. On the Government side of the House, we believe that standing up for free speech is a key responsibility of any democratic Government, we believe that students and lecturers should not be silenced, and we are prepared to stand up for free speech and not just make tokenistic soundings regarding its value. That is why we are bringing forward this legislation to deliver on our manifesto pledge.
Some hon. Members questioned whether there is a problem on our campuses. Tell that to the countless academics and students who have shared their experiences with me. Tell that to the students and academics whose stories have been shared by hon. Members today.
Mr Kevan Jones
The hon. Lady has just said that she has countless examples. Will she, after the debate—if she does not have it with her now, that is fine; I accept that—publish the data on which the Bill is based? That would at least show that there is some evidence behind the Bill, rather than just the hearsay she is telling us about.
Michelle Donelan
I am confused about how the right hon. Member cannot recognise the evidence. We have heard from so many hon. Members today who have shared examples: my hon. Friends the Members for Ashfield (Lee Anderson) and for North West Durham (Mr Holden); the hon. and learned Member for Edinburgh South West (Joanna Cherry); the hon. Member for Canterbury (Rosie Duffield); my right hon. Friend the Member for South Holland and The Deepings; the hon. Member for Gower (Tonia Antoniazzi), and my hon. Friends the Members for Congleton and for Dudley North (Marco Longhi).
Numerous studies have shone a spotlight on the problem, but they only document the tip of the iceberg, given the nature of the chilling effect outlined by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). Think for a moment about those who feel too afraid to speak out for fear of repercussion, and feel that they have to self-censor. Our universities should always be bastions of freedom and intellectual discussion. That point was well made by my hon. Friend the Member for Watford (Dean Russell).
As my hon. Friend the Member for Penistone and Stocksbridge (Miriam Cates) stressed, how can we expect society to progress or opinions to modernise unless we can challenge the status quo? The intolerance and influence of some has led students and academics to self-censor their views. Those individuals are some of the best and brightest, yet their ideas go unexpressed. Imagine the potential loss here—we will never know. We can, at least, look back at the past. Where would we be now if the views of 100 or even 200 years had never been challenged? As a woman, I doubt I would be an MP, let alone Universities Minister.
No one can deny the massive impact that covid has had on students, universities and staff. However, to address the question asked by the hon. Member for Warwick and Leamington (Matt Western) as to why we are doing this now, I would argue that covid has highlighted the value of personal freedoms that many of us used to take for granted. That is on top of the fact that the British public placed their faith in us to deliver on a manifesto—and deliver we certainly will.
We have heard from some Opposition Members that we need cultural, not legislative, change. I remind them that current legislation lacks an enforcement mechanism. Yes, some universities, including Essex, have got their house in order, and we recently saw a strong commitment from the Russell Group, but as so many speakers today have highlighted, there is a problem. We also know the crucial role legislation can play, and has played, in cultural change; take gender equality, race discrimination and human rights as examples.
A number of Members spoke about how higher education providers will have to balance competing duties. It is important to remind the House that they already have to do that. However, the Bill places a duty on providers to take reasonably practicable steps to secure lawful free speech. It does not supersede the Prevent duty or the Equality Act. The requirement to take reasonably practicable steps is right. It cannot be sensible to require providers to act unreasonably or to ignore their other legal duties. The Bill will give providers further clarity, because the new director will give advice and issue comprehensive guidance.
I want to be very clear: this Bill only protects lawful free speech. Harassment, racism, discrimination, hate crimes, and incitement of violence or terrorism will have no place on our campuses or in our society. In fact, I vehemently believe that we should defend and safeguard freedoms on all fronts, from freedom of speech to freedom from persecution.
Christian Wakeford
What we have heard from those on the Opposition Benches, in trying to suggest that holocaust deniers will be supported in going on to our university campuses, is clearly fearmongering. Will the Minister set the record straight and highlight that that is not the case and that we are supporting our students?
Michelle Donelan
I absolutely confirm that, and I agree with my hon. Friend.
Some Members have asked how the Bill will interact with the Government’s work to combat antisemitism. Antisemitism is abhorrent and will not be tolerated in our universities, which is why we have encouraged more than 100 higher education providers to sign up to the International Holocaust Remembrance Alliance definition. Regarding the specific question of holocaust deniers, any attempt to deny the scale or the occurrence of the holocaust is morally reprehensible and has no factual basis. In many cases, those who deny the holocaust have links to neo-Nazi extremism, antisemitic violence and intimidation. There are numerous reasons why someone who denies the holocaust should not be invited to speak on campus, and nothing in the Bill gives them a right to a platform.
Mr Kevan Jones
I agree totally with the hon. Lady and I do not think for one minute that she is promoting those individuals, but what is to prevent a holocaust denier who has been denied the opportunity to speak at a university from using the legal framework in the Bill to sue that university? The legal action might not get anywhere, but the university would have to spend a lot of time and effort defending itself.
Michelle Donelan
I thank the right hon. Member for his intervention.
The European Court of Human Rights has held that holocaust denial is not protected speech under article 10 of the European convention on human rights and as such is intolerable in a democratic society. I will put on record again, just as my right hon. Friend the Secretary of State did before, that there is no place in universities for an extremist views that masquerades as fact but is complete fiction while grotesquely seeking to misinterpret global history in a deeply offensive way. To be absolutely clear, the Bill does not override the existing duties under the Equality Act regarding harassment and unlawful discrimination. The public sector equality duty, the Prevent duty, hate crime and, of course, criminal law may apply. That point was excellently articulated by a number of Members, including my hon. Friend the Member for Bury North (James Daly).
The Opposition raised the issue of anti-vaxxers. We have one of the world’s most successful vaccination programmes, with over half of 18 to 24-year-olds already having had their first jab. The Bill categorically does not give the right to a platform to anti-vaxxers who may make baseless claims. This makes me wonder whether the Opposition have, in fact, read the Bill. We will not be supporting their amendment today, as it serves only to highlight their desire to inhibit free speech. The hon. Members for Stretford and Urmston (Kate Green) and for St Albans (Daisy Cooper) argued that the Bill would result in universities refraining from inviting speakers. The reality is that it places a duty on providers to promote free speech, and they will be investigated by the director if they fail to meet that duty. The importance of the new duty to promote was clearly articulated by the right hon. Member for North Durham (Mr Jones).
I want to note the powerful speech by the hon. Member for Birmingham, Yardley (Jess Phillips). I agree 100% that abhorrent sexual harassment has absolutely no place on our campuses, and every university should have a robust complaints process. Two weeks ago, I wrote to all universities stating the Government’s clear view that non-disclosure agreements should not be used in these circumstances, and the OfS has produced a statement of expectation and is looking at creating a new registration condition. I recently met the founders of Everyone’s Invited, and I would also be happy to meet the hon. Member to discuss this important topic.
My hon. Friend the Member for Bury South (Christian Wakeford) raised the issue of security costs resulting from no-platforming, and cited the example of the Israeli ambassador. Higher education providers should not be no-platforming by the back door. The Bill is clear that reasonably practical steps should be taken to secure freedom of speech for visiting speakers, and I expect the Office for Students guidance to make it clear that this applies to security costs.
The Bill will protect numerous views that are alien to me and to many in this Chamber, but it is not only naive but dangerous to suggest that defending the right of a view in any way endorses a specific view. Surely, as politicians, we should all agree with the sentiment of Evelyn Hall, who stated when summing up Voltaire’s views:
“I disapprove of what you say, but I will defend to the death your right to say it.”
It is disappointing that not all Opposition Members understand this simple principle, which is much at the heart of the Bill: not a right-wing, anti-woke agenda but an agenda that allows all views and ideas to flourish. We have an immeasurable pool of talent in our students and academics, overflowing with ideas and values that will drive forward this country to build back better, and now is the time to unlock their potential.
Universities should not be echo chambers but petri dishes of new, thought-provoking ideas, concepts and visons. That is why this Government are making good on their manifesto commitment to tackle the pattern of self-censorship and its chilling effect by protecting and bolstering free speech and academic freedom. I commend the Bill to the House.
Question put, That the amendment be made.
Higher Education (Freedom of Speech) Bill (Carry-over)
Monday 25th April 2022
(2 years, 7 months ago)
Commons ChamberRead Full debate Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Notices of Amendments as at 12 January 2022 - (12 Jan 2022)
Matt Western (Warwick and Leamington) (Lab)
What a palaver! This is less a carry-over motion and more of a carry on, if I may say so—“Carry On Regardless” being probably the most apt title. Let us call it a year: it is 358 days since the Bill was introduced to the House. Announced in the last Queen’s Speech, the Second Reading was debated nine months ago and the Public Bill Committee concluded its work over seven months ago. Since then, nothing—so is there a problem? The lack of urgency suggests it is really not that important after all. Certainly, the Secretary of State has not mentioned it once in the Chamber since his appointment five months ago, and the legislation would certainly have no effect on cancel culture, according to lawyers, media commentators and the sector itself.
The Government now want another year to resolve their own problem—a problem of their making—which is more time that could be better used to address the immediate and pressing issues faced by the great British public, such as the cost of living crisis, the prospect of 40% of UK households being in energy poverty by the autumn and an economy performing worse than any other G7 country when compared with pre-pandemic levels. We will not vote against this motion, but the public will not forgive this out-of-touch Government, who fail to address their priorities.
The Minister for Higher and Further Education (Michelle Donelan)
Let me be crystal clear: the Government remain committed to delivering on our manifesto pledge by strengthening freedom of speech in higher education. We have not changed, and never will change, our position, because we recognise that free speech is the absolute cornerstone of democracy and a liberal society. Our universities should be centres of inquiry and intellectual debate, and places of new and independent thinking from which will grow the knowledge, learning and science that we need to tackle future global challenges. The reintroduction of the Higher Education (Freedom of Speech) Bill reaffirms our manifesto commitment, yet the Opposition’s position can be described only as perplexing. First they said that if such legislation were needed they would support it, but then they changed their position to say that the issue does not exist and they will not support the Bill. Now their position has become even more confusing.
Once again, the Opposition find themselves entirely out of step with the British people on a matter of fundamental importance. Their unwillingness to acknowledge that this is an issue has shown their contempt for the views of ordinary people, and their unwillingness to support a democratic legislative solution without an alternative plan —something that was very clear throughout Committee —shows that, as always, their cynical party politicking comes ahead of common sense. Even now they try to deflect by a ruse to suggest that our commitment to this issue has waned. This Bill will ensure that lawful free speech is supported to its full extent.
Question put and agreed to.
animal welfare (kept animals) Bill: Carry over
Ordered,
That—
if, at the conclusion of this Session of Parliament, proceedings on the Animal Welfare (Kept Animals) Bill have not been completed, they shall be resumed in the next Session; paragraphs (9) to (14) of Standing Order 80A shall have effect in relation to the Bill as if it had been ordered to be carried over to the next Session of Parliament in pursuance of a carry-over motion under paragraph (1) of that Standing Order, except that paragraph (13) shall have effect as if the period on the expiry of which proceedings on the Bill shall lapse is two years from the date of its first reading in this House.—(Victoria Prentis.)
Higher Education (Freedom of Speech) Bill
Monday 13th June 2022
(2 years, 6 months ago)
Commons ChamberRead Full debate Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 13 June 2022 - large print - (13 Jun 2022)
19:52 - The House divided: - Ayes: 150 / Noes: 282 - Question accordingly negatived.
20:06 - The House divided: - Ayes: 152 / Noes: 284 - Question accordingly negatived.
The Minister for Higher and Further Education (Michelle Donelan)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dame Eleanor Laing)
With this it will be convenient to discuss the following:
New clause 1— Duty to disclose overseas gifts and contracts affecting freedom of speech—
‘In section A3 of the Higher Education and Research Act 2017 (inserted by section 1), at end insert—
“(2) Whenever a registered higher education provider, or any of its members, employees, departments or associated bodies, enters into a disclosable arrangement with an overseas counterparty, its governing body shall, as one part of discharging the duty to promote the importance of freedom of speech and academic freedom in subsection (1), promptly report the required information about such arrangement to the OfS and the Secretary of State.
(3) By 30 April each year, the OfS shall publish on its website a searchable report which contains all required information which has been disclosed to it pursuant to subsection (2) above in the preceding year.
(4) If the governing body of a registered higher education reasonably believes that the publication of the identity of the overseas counterparty pursuant to subsection (3) or subsection (6) might present a risk of serious harm to any natural person, it may notify the OfS and will provide such information as the OfS may require to investigate such risk(s).
(5) If, following a report under subsection (4) above and such investigation as it considers appropriate in the circumstances, the OfS finds that the publication of the identity of the overseas counterparty pursuant to subsection (3) or subsection (6) might present a risk of serious harm to any natural person, then it may redact such information from its report.
(6) By 30 April 2023, the governing body of each registered higher education provider shall report to the OfS and the Secretary of State the required information of any disclosable arrangement which it, or any of its members, employees, departments or associated bodies, entered into during the ten years prior to this section coming into force, and the OfS shall publish such information on its website in a searchable report by 30 April 2024.
(7) If the registered higher education provider fails to comply with this duty, the OfS may enforce compliance in civil proceedings for an injunction.
(8) In this Part—
(a) “associated bodies” means any company, institution, trust, organisation or similar body or group in respect of which the relevant registered higher education provider has significant control or ultimate beneficial interest;
(b) “disclosable arrangement” means any formal or informal contract, gift or other arrangement by which a financial or other advantage is offered, promised or given to a registered higher education provider or any person or body mentioned in subsection (2) above, whether conditionally or unconditionally, which is equal to or exceeds £50,000 (or would equal or exceed such value in combination with other potentially disclosable arrangements entered into with the same overseas counterparty, or connected overseas counterparties, within the previous twelve months);
(c) “overseas counterparty” means—
(i) any natural person who holds citizenship of, or is domiciled in, any country or territory outside the United Kingdom (or any subdivision of such a country or territory);
(ii) any government, organisation, institution, company, foundation, legal person, trust, or similar body or group which is registered, incorporated, headquartered or carries out significant activities in any country or territory outside the United Kingdom (or any subdivision of such a country or territory) or in respect of which ultimate beneficial ownership or significant control resides in a person falling within subsection (c)(i) above; or
(iii) any person acting in any capacity for or on behalf of any person who would fall within subsection (c)(i) or (c)(ii) above if they were acting on their own account;
(d) “required information” means—
(i) the exact value of the relevant disclosable arrangement(s);
(ii) the identity of the overseas counterparty and the name of any relevant country or territory (and, if relevant, such information about the person(s) for whom they are acting or in whom ultimate beneficial ownership or significant control resides);
(iii) the date on which the relevant disclosable arrangement(s) was entered into;
(iv) details on the general purpose of the relevant disclosable arrangement(s); and
(v) any specific stipulations or obligations imposed on the registered higher education provider or any of its members, employees, departments or associated bodies (including, but not limited to, any changes to any curricula, governance or control of them).””
This new clause seeks to introduce transparency and public reporting of foreign donations to universities, in order to promote freedom of speech and academic freedom, and increase public confidence in universities.
New clause 3—Duties regarding language and cultural programmes—
In section A3 of the Higher Education and Research Act 2017 (inserted by section 1), at end insert—
‘(2) Whenever a registered higher education provider enters into partnership with an overseas organisation to deliver foreign language, culture or exchange programmes or courses, its governing body must, as one part of discharging the duty to promote the importance of freedom of speech and academic freedom in subsection (1), promptly report the required information about the partnership to the OfS and the Secretary of State.
(3) In response to the information received under subsection (2), and where there are concerns regarding the effect of the partnership on freedom of speech and academic freedom, the Secretary of State may issue a direction to the registered higher education provider.
(4) A direction under subsection (3) may be either to—
(a) terminate the partnership, or
(b) offer an equivalent range of programmes or courses delivered in partnership with an alternative organisation.
(5) In this Part, “required information” means—
(a) the financial value of the partnership;
(b) any specific stipulations or obligations imposed on the registered higher education provider or any of its members, employees, departments or associated bodies (including, but not limited to, any changes to curricula, governance or control of them).”
New clause 4—Appointment of the Director for Freedom of Speech and Academic Freedom—
‘(1) A person may not be appointed as the Director for Freedom of Speech and Academic Freedom (‘Director’) if the person has at any time within the last three years made a donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.
(2) The person appointed as the Director may not whilst in office make any donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.
(3) The appointment for the Director shall be made by an independent advisory panel to be established by regulations made by the Secretary of State.
(4) The appointment of the Director for Freedom of Speech and Academic Freedom shall be subject to a confirmatory resolution of the relevant Select Committee of the House of Commons.
(5) A statutory instrument containing regulations under subsection (3) may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”
This new clause would ensure that the Director of Freedom of Speech and Academic Freedom has not and cannot whilst in office donate to a political party and ensure they are only appointed subject to confirmation of an independent advisory panel, the Select Committee of the House of Commons and a resolution of each House of Parliament.
New clause 5—Sunset clause—
‘(1) This Act expires at the end of the period of 3 years beginning with the day on which it is passed.
(2) A Minister of the Crown may by regulations made by statutory instrument remove any of the provisions of this Act after one year from the day on which it is passed if he is not satisfied that the provision is working as intended.
(3) Before three years from the day on which this Act is passed a Minister of the Crown must present to Parliament a written report on the effectiveness of the provisions of the Act.
(4) A Minister of the Crown may by regulations made by statutory instrument renew this Act, subject to parliamentary approval in full or in part, or make transitional, transitory or saving provision in connection with the expiry of any provision of this Act.
(5) Regulations under this section shall be subject to the affirmative procedure.”
This new clause would mean the legislation would have to be renewed by Parliament after a period of three years.
New clause 6—Academic staff: interpretation—
‘(1) Section 121 of the Higher Education and Research Act 2017 is amended as follows.
(2) After “Act—” insert—
“academic staff, for the purposes of any provision inserted by the Higher Education (Freedom of Speech) Act 2022, includes any academic staff (however engaged or employed), honorary, visiting and emeritus academic members of a provider and any other person held out as holding any academic position at the provider;””
New clause 7—Harassment—
In section 26 of the Equality Act 2010, after subsection (4)(c) insert—
“(d) when A is a student or a member of the academic staff of a registered higher education provider and the conduct took place in the context of a discussion in a higher education setting—
(i) the importance of freedom of speech and academic freedom, as provided for under Part A1 of the Higher Education and Research Act 2017 (as inserted by section 1 of the Higher Education (Freedom of Speech) Act 2022), and
(ii) whether A intended to harass B, or was reckless as to whether A’s conduct constituted harassment towards B.”
Amendment 21, in clause 1, page 2, line 2, at end insert—
“(3A) Any conduct that would otherwise constitute conduct having the effect of harassment in accordance with section 26(1) of the Equality Act 2010 shall, notwithstanding any provision to the contrary in that Act, constitute freedom of speech within the law for the purposes of subsection (2), provided that—
(a) the conduct constitutes, or forms part of, discussion of an academic or scientific matter in a higher education setting, and
(b) the person engaging in such conduct did not know or could reasonably not have known that it would have the effect of harassment.”
Amendment 19, in clause 1, page 2, line 6, at end insert—
“(4A) The objective in subsection (2) includes securing that no person listed in paragraphs (a) to (d) of subsection (2) is deprived of an ability to speak freely as a result of a non-disclosure agreement or confidentiality agreement between that person and the governing body of the registered higher education provider.
(4B) The provision in subsection (4A) does not prevent the use of a non-disclosure agreement in any case where the governing body and academic staff member agree that a non-disclosure agreement or confidentiality agreement is necessary for the protection of intellectual property.”
This amendment would ensure that non-disclosure agreements or confidentiality agreements between those listed on the Bill and a higher education providers does not inhibit the freedom of speech for those concerned, save where it is agreed to protect intellectual property.
Government amendment 1.
Amendment 17, in clause 1, page 2, line 14, at end insert—
“(c) to conduct research,
(d) to engage in intellectual inquiry and contribute to public debate,
(e) to criticise any institution,
(f) to be affiliated to any institution, and
(g) to be a member of a trade union body,”
This amendment would widen the definition of academic freedom.
Government amendments 2 and 3.
Amendment 20, in clause 1, page 2, line 32, after “views” insert “or to share experiences”.
This amendment is consequential on Amendment 19.
Government amendments 4 to 10.
Amendment 18, in clause 8, page 9, line 32, at end insert—
“(3A) In reaching a decision as to the extent to which a free speech complaint is justified, the OfS must be mindful of the following—
(a) the right of students to feel safe on university campuses, and
(b) other legal duties of governing bodies and students’ unions, such as but not limited to those under the Equality Act 2010 and section 26 of the Counter-Terrorism and Security Act 2015.”
This amendment would ensure other competing freedoms as found in the Equality Act and the Counter-Terrorism Act and Security Act 2015 are considered in relation to complaints lodged under the Free Speech Complaints Scheme
Government amendments 11 to 16.
Michelle Donelan
I thank all Members for their important contributions throughout the Bill’s consideration. More than two thirds of the world’s population live in countries where academic freedom is severely limited. For decades, people have travelled across the globe to study in the UK because we are one of the few nations in which free, fair and lawful speech at university is truly valued. It is no coincidence that the most academically free countries in the world are also the most socially progressive, the most democratic, the most peaceful and, of course, the most prosperous.
Free speech is as fundamental to what academics and students do on university campuses as it is to what we do in the House. However, as we saw on Second Reading, the Opposition chose to deny that there is a problem at all, despite overwhelming evidence to the contrary. In fact, since we last debated the Bill, the UK has become the only country in the top tier of academically free countries to be significantly downgraded by the academic freedom index. A report published by the Varieties of Democracy Institute determined that despite the UK’s status as a historic bastion of academic freedom and scientific excellence, not only is academic freedom in the UK declining but that decline appears to be accelerating.
Sir Edward Leigh (Gainsborough) (Con)
The Alliance of Pro-Life Students says that more than 70% of pro-life students face situations in seminars or lectures where they feel unable to speak openly, and one in three students surveyed had seen events cancelled due to the no-platforming of pro-life students and speakers. Will the Minister make it absolutely clear that whatever people’s views on pro-life issues, those who take that stance have a right to be heard in our universities?
Michelle Donelan
I wholeheartedly agree with my right hon. Friend. Of course, they deserve and have a right to be able to air their views and debate that subject.
In oral evidence, Dr Arif Ahmed spoke about how his fellow academics told him that they supported his campaign for free speech but were concerned that their careers would be impacted if they aired that publicly. We also heard from Professor Kathleen Stock, who has been the subject of the most grotesque and sustained campaign of threats and abuse, which compelled her to resign. Is it therefore any wonder that, in 2019, a King’s College London survey found that, chillingly, one in four students believed that physical violence was justified to shut down views that they deemed to be hateful?
The following year, a report by Policy Exchange found widespread self-censorship among university staff, but students and staff did not need to wait for those damning studies or for oral evidence to be published to know that there was a problem. The students forced to self-censor know that there is a problem. The academics bullied off campus, excluded by colleagues or forced to censor their lectures know that there is a problem. Legitimate organisations, speakers and guests who have been no-platformed or physically and verbally abused on campus know that there is a problem. It is just the Opposition who have their heads in the sand.
Alicia Kearns (Rutland and Melton) (Con)
Will the Minister confirm that the Secretary of State will maintain the ability to direct the director to further inquiry, should he have concerns that the OfS is not investigating an issue suitably?
Michelle Donelan
Of course, we work hand in hand with the OfS and if there were concerns, we would be able to direct.
We are introducing a new complaint scheme, operated by the OfS, for students, staff and visiting speakers who have suffered loss as a result of a breach of those duties. On top of that, we are introducing a new statutory tort as a legal backstop. The Government tabled amendments in Committee to ensure that new strengthened freedom of speech duties apply directly to constituent colleges of registered higher education providers. That will ensure that appropriate institutions must comply with the new duties in universities such as Oxford, Cambridge and Durham.
Daniel Zeichner
I am grateful. I am sure the Minister will be aware that institutions such as the University of Cambridge are concerned about the extra bureaucracy that may well create—particularly for commercial partnerships, which are completely unrelated to freedom of speech issues. Will she clarify what is meant by “constituent institutions” and the intent in new clause 2? Is she really putting a general monitoring duty on the OfS to require pre-emptive reporting?
Michelle Donelan
The hon. Gentleman raises a few points. In new clause 2, “constituent institutions” mean colleges. It is right that we should not have a potential loophole in the Bill. When forming new clause 2, I worked very closely with the university sector, including the University of Cambridge, so I ask him, respectfully, to talk to it again.
A number of important issues were raised in Committee. Opposition Members expressed concerns that the Bill would protect hate speech on campus. I have been clear throughout the passage of the Bill and will make the point once again: the Bill is only about lawful free speech. Let me be clear that this cheap shot has no actual validity. It is the Opposition’s attempt to discredit the Bill. It is a strong signal that they are content for an intolerant minority to silence those they disagree with, content for academics to feel the need to self-censor, content for students to miss out on the ability to debate, to critique and to challenge, and, ultimately, content to stifle debate. The Bill does not override the existing duties under the Equality Act 2010 regarding harassment and unlawful discrimination, nor the public sector equality duty and the prevent duty. Nor does it give anyone the right to be invited to speak at a university.
There were also questions from Members on both sides of the House, including my hon. Friend the Member for Congleton (Fiona Bruce), on whether junior researchers and PhD students will be covered as academic staff. That was laid as an amendment by my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes). To clarify, the Bill uses the term “staff” to broaden the existing reference to employees, as not all those who work for a higher education provider have an employment contract or employee status. I can confirm that it will include those on short-term, casual contracts and PhD students undertaking teaching.
I now turn to the Government amendments tabled in the name of my right hon. Friend the Secretary of State. New clause 2 and Government amendments 13 and 14 will impose a duty on the Office for Students to monitor the overseas funding of registered higher education providers and their constituent institutions, so as to enable it to assess the risk from such funding on freedom of speech and academic freedom. The duty will include a requirement to consider this in the context of a finding of a breach of new section A1 in clause 1. Higher education providers will be required to supply to the OfS information about overseas funding from certain individuals and organisations, with the details to be set out in regulations. The funding will cover not only the income that providers receive, but that of their constituent institutions, their members and their staff in their capacity as such. Similar provision will also apply to student unions. The OfS must include a summary of the information in its annual report, along with relevant patterns of concern.
Our amendments are proportionate, but we must ensure that our higher education system remains world leading, safeguarding an environment in which freedom of speech and academic freedom can thrive.
Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
The Secretary of State was escorted off the premises by security following his attendance to give a speech at one of our leading universities, after he was hassled. That was shameful behaviour, but that level of security is not available to everyone at all times. We need not just legislative change but a culture change, so that we accept that everyone with a different view is not a bad person and that there is not necessarily a right or wrong answer. What wider work are the Government are doing to instil that in younger children before they get to university?
Michelle Donelan
My hon. Friend is right. We need a cultural change, and legislation of this nature can spur such change. In our schools, we also need an environment of openness and frankness, and to grow that throughout the education system. I know that my colleagues in the Department are looking at this and will provide further guidance to support teachers shortly.
I know and understand the concerns raised by hon. Members, including my right hon. Friends the Members for Hereford and South Herefordshire (Jesse Norman) and for Chingford and Woodford Green (Sir Iain Duncan Smith), and my hon. Friend the Member for Rutland and Melton (Alicia Kearns), which is why the Government are acting on new clause 3. I can confirm explicitly that the Government amendment will include educational partnerships, including Confucius institutes, and that the OfS will be able to impose a wide range of proportionate remedies as specific conditions of registration. That could include requiring a provider to make available alternative provision, or even to terminate a partnership if necessary to protect free speech. We will ask the OfS and its new director to make it clear that those are possible remedies in the guidance that will be published.
We of course continue to welcome foreign investment and donations to higher education as a key part of supporting innovation and development, but the amendments will increase the transparency of overseas income by requiring granular data to be reported to the OfS. Our intention is to proscribe countries for the purpose of the amendment by mirroring the countries listed in the academic technology approval scheme, which will exclude countries such as our NATO and EU allies, as well as countries such as Japan. We also intend to set a threshold of £75,000 in regulations. Hon. Members should be assured that in each case the ability to make provision by way of regulations will allow us the flexibility to amend as appropriate.
Alicia Kearns
I thank my right hon. Friend for the significant time that she has invested in speaking to my colleagues and me about this. Can she confirm clearly that Confucius institutes will fall within the remit of the organisation she is discussing because of the grave concerns about their strangulation of freedom of speech and thought on British campuses?
Michelle Donelan
I can confirm that Confucius institutes fall within the scope of these proposals, as I have outlined, and I urge all universities to increase the choice that they provide to students in this regard.
Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)
Following the intervention by my hon. Friend the Member for Rutland and Melton (Alicia Kearns), I wish to be assured on one point. Do the Government genuinely believe that the Confucius institutes pose a threat? Other Governments in the free world have banned the institutes from campuses, not only because they limit free speech, but because they have been involved in spying on Chinese students, especially those who show any kind of disregard for what China does. The institutes are very dangerous, and the issue goes wider than just the ability to shut down free speech: they are also reporting back about Chinese students, many of whom live in fear.
Michelle Donelan
Many countries have worked with their university sectors to enhance the choice on offer. For the first time, the Bill will give the OfS the power to act if free speech is in question, so it is radical in that sense.
Dr Julian Lewis (New Forest East) (Con)
I appreciate that the provision is mainly about free speech in UK universities, but does the Minister share my concern about the proposed £155 million gift from the billionaire chairwoman of a Vietnamese company to Linacre College, Oxford, a distinguished graduate college, on condition that the name of the college is changed to that of the chairwoman? Her company is extremely close to the Vietnamese Communist Government, where there is certainly very little freedom of speech. The Privy Council has to approve the change. Are the Government taking a view on the matter?
Michelle Donelan
I have recently been alerted to this issue and I am actively investigating it. I will update my right hon. Friend in coming days.
Government amendments 3 and 4 and 6 to 10 make provision on the payment of security costs for events. The amendments place a duty on higher education providers, colleges and student unions not to pass on security costs unless in exceptional circumstances to secure freedom of speech within the law. The Government want to put an end to the practice of no-platforming by the back door, raised by many Members in Committee, including my right hon. Friend the Member for South Holland and The Deepings.
I said then that I was listening, and the amendments address the concerns. We have seen reports that a student society faced a £500 security bill from Bristol University student union to allow the Israeli ambassador to give a talk, while charging nothing to allow his Palestinian counterpart to do the same. The Union of Jewish Students has reported to me that some Jewish societies have even been billed for security costs for having stalls at freshers’ fairs. That is outrageous. If a university has a culture on campus in which security is required for inviting routine speakers, it has a culture in which intimidation, threats and violence are seen as acceptable. That does not constitute promoting free speech. The solution is to stamp that unacceptable culture out and stop student societies paying the price for those who break the law.
Government amendment 5 will change the coverage of college student unions, often called junior and middle common rooms. It makes it clear that the Bill does cover the activities of JCRs and MCRs, thereby clarifying the position.
Government amendment 11 will make it clear that the OfS is not required to make a decision as to the extent to which a free speech complainant is justified if that complaint is then withdrawn. Government amendments 12 and 15 set out how publication under the scheme will work in relation to the more general publication provisions recently inserted into the Higher Education and Research Act 2017 by the Skills and Post-16 Education Act 2022. In particular, the Bill provides for absolute privilege against defamation claims arising from publication of OfS’s decisions under the complaints scheme, whereas the general provisions give qualified privilege to other publications. The absolute privilege matches the approach taken by Parliament to the complaints scheme run by the Office of the Independent Adjudicator for Higher Education.
Government amendments 1, 2 and 16 will remove the express limitation on the definition of academic freedom that it covers only matters within an academic’s field of expertise. Once again, the Government have listened carefully to Members who raised issues in Committee, including my hon. Friend the Member for Congleton and my right hon. Friend the Member for South Holland and The Deepings.
The Bill marks the Government delivering on our manifesto pledge, while listening and strengthening the Bill throughout.
Matt Western (Warwick and Leamington) (Lab)
Before I discuss the amendments in my name, I will briefly reflect on the Bill Committee. Over three weeks, we debated some 80 amendments in a constructive spirit; I commend right hon. and hon. Members across the Committee who participated and contributed to what was at times an abstract debate, but an important one, about academic freedom and freedom of speech.
Since the end of the Committee stage, some 300 days have elapsed and—nothing. Despite constant speculation about whether the Bill would fall victim to the Government’s own internal politics, it is finally on Report. The Opposition welcome that, but if I may say so, the Bill’s fragmented and bumpy ride through Parliament is emblematic of what observers widely consider a shoddy piece of legislation, at best unnecessary and at worst divisive.
I wish to address the amendments in my name—new clause 4, on the director for freedom of speech and academic freedom; amendment 17, on the scope of academic freedom; amendment 18, which aims to recognise the competing freedoms in debates around freedom of speech; new clause 5, our proposed sunset clause; and amendments 19 and 20, which my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) and I tabled on the prohibition of non-disclosure agreements—and the Government amendments.
New clause 4 would ensure that the director for freedom of speech and academic freedom has not donated, and cannot donate, to a political party while in post. It would ensure that both Houses of Parliament and the relevant Select Committee have a say on the person appointed. It would also provide for the Secretary of State to set up an independent advisory panel to suggest a suitable candidate for appointment.
Munira Wilson (Twickenham) (LD)
I very much hope that when the Minister responds to new clause 4, she will acknowledge that the Government’s track record on appointments has not been strong of late. The High Court has ruled that the then Health Secretary did not comply with the public sector equality duty when he appointed the head of a new public health quango. The chair of the Charity Commission resigned just days after being confirmed in post. The search for the chair of Ofcom was rerun after Ministers’ recommendation was unsuccessful. Does my hon. Friend agree that the checks and balances in new clause 4 are vital to this important appointment?
Matt Western
The hon. Member is right. A pattern is clearly emerging, which I will describe and examine in due course.
Having an Orwellian director for freedom of speech sounds like a contradiction in terms, but the appointee will certainly have sweeping powers. They alone will be responsible for making sure that universities and student unions are upholding their freedom of speech duties. They will act as judge, jury and executioner in free speech complaints and will potentially monitor overseas funding of universities and student unions. As job descriptions go, it is unprecedented. Incredibly, the job description is already out there, for anyone who is interested, with a £100,000 salary and a four-year term—I am not sure, Madam Deputy Speaker, but it could be on your horizon.
New clause 4 should not be necessary, but in the context of this Government’s record on appointees, it most definitely is. Let us start at the very top of the tree. In February last year, Lord Wharton, a Conservative peer, was appointed as chair of the Office for Students. His appointment was something of a surprise to many; he himself admitted that he had no experience in the higher education sector. It seems that the only criterion for his appointment by this Government was that he had run the Prime Minister’s leadership campaign.
Emma Hardy (Kingston upon Hull West and Hessle) (Lab)
The standardisation provided by allowing a body such as a Select Committee to interview a person before appointing them to a role such as chair of Ofsted is common. The Minister knows that, because she was on the Education Committee with me when we did pre-appointment hearings, so it seems a little unusual that scrutiny is not seen as being as important in this aspect of education as in other areas.
Matt Western
My hon. Friend is absolutely right. We need more process, more transparency and an honest approach if we are to clean up our politics. I absolutely believe that that is what I would want any organisation to have. We must move away from what appears to be an increasingly transactional approach to these appointments.
In return for his being appointed, Lord Wharton’s company GBMW Ltd made what is now referred to as a golden thank you for being handed the job by the Prime Minister: a donation to the Conservative party of £8,000. That is small change for him, given that he gets paid £60,000 for just two days’ work per week.
Last month, we discovered that Lord Wharton had chosen to speak at the Conservative Political Action Conference in Hungary. It was a sell-out. In his speech, he endorsed Viktor Orbán’s far-right, autocratic regime—the regime that had forced George Soros’s Central European University to leave Budapest in 2019. So much for our champions of academic freedom! He also shared a platform with Zsolt Bayer, a television talk show host in Hungary who has been widely denounced for his aggressive racism; his grotesque comments do not bear repeating in this place.
Despite widespread condemnation from student groups here such as the Union for Jewish Students, and cross-party calls for the Government to take action against the chair, it is telling that Ministers have so far refused to do so. That is important, because independence, propriety and accountability in public life absolutely matter. That is the point of new clause 4.
It seems that the politicisation of the Office for Students has not stopped there. Three months ago, the Secretary of State appointed Rachel Houchen, the wife of the Tory Tees Valley Mayor Ben Houchen, as a non-executive director on the board of the Office for Students, despite her having no direct experience in the higher education sector.
In that context, the comments made in Committee by one of the Government’s own witnesses, Professor Nigel Biggar, especially alarmed the Opposition. He agreed that
“the Government…given the legislation…wants a director who has a certain partiality of that kind.”—[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 22, Q40.]
Even the Government’s own witnesses fear that the appointment will not be impartial: Dr Arif Ahmed and others made the point that the person “has to be impartial”.
In Committee, the Minister responded to a series of Opposition amendments by stating:
“There is no need to set up the bureaucracy of a non-statutory advisory body, as suggested by the amendment. The OfS is independent of the Government, so to do so would simply duplicate its role as set out in the statute.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 22 September 2021; c. 343.]
Well, clearly not. If the appointments to the OfS are meant to reassure us that the director will be impartial, they have lost all credibility. I dare say that the Minister will repeat the same line today, as she has done—blind to any suggestion of improvement, not least because this morning her Department advertised for the position even though the Bill has not even had its Third Reading.
Sir John Hayes (South Holland and The Deepings) (Con)
The hon. Gentleman is right that we had a useful, productive and positive exchange in Committee. I just want to correct the record for him because, knowing him well, I know that he would never mislead the House except inadvertently. Dr Ahmed—Professor Ahmed, I should say—is an enthusiastic supporter of this legislation and an enthusiastic supporter of the idea of having someone to oversee it. What he emphasised in his evidence and subsequently is that there should be impartiality in the exercise of that person’s work. This was not, as the hon. Gentleman suggests it is, about Dr Ahmed in any way questioning either the custom or practice associated with this legislation.
Matt Western
The right hon. Member was very involved in the Committee, and I thought that his contributions were robust and helped the debate along. I do not mean to misrepresent what Professor Arif Ahmed may have said, and he did say that this should be impartial. However, it was clear from what was said by Professor Biggar that that will not be possible if the Government want to do what they have set out to do. This is the point that I was trying to make, and if I did not make it clearly I apologise, but I have certainly tried to put it back on the record now.
Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)
Is the shadow Minister suggesting that by previous political association, someone can never be impartial in any possible future appointment?
Matt Western
I do not want to suggest that all people come from a position of partiality, but some are more partial—and overtly partial—than others. That was the whole point of what I tried to illustrate in the case of the chair of the Office for Students, who was clearly appointed according to the preference of the Government at the very highest level and the Prime Minister. I think that that surprise appointment, along with the appointment of the board member with no previous experience, is a further illustration of just how rabid this has become in our politics.
Emma Hardy
The issue of impartiality in the appointment process was debated in detail in Committee. We had a long debate about the job specification, the requirements, the importance of previous experience and the need to appoint someone with previous understanding of legislation and law, and the fact that the process needs to be impartial. When we appoint the new chair of Ofsted, we do so not on the basis of whom the Prime Minister of the day particularly likes, but on the basis of whether that person has the competencies that the job requires, and that is the point of our amendment. If such a person is to be appointed, we need the best person for the job, not the person who is most popular with the current Prime Minister.
Matt Western
My hon. Friend made some telling and constructive contributions in Committee, and I entirely agree with her. If we want the best from any system of higher education and its regulation, competencies must be at the heart of that.
Have a look through the job description for the director for freedom of speech, Madam Deputy Speaker. Four or five specified qualities are sought. It is worth a read, and indeed I am thinking of possibly putting in for the job. What is most surprising of all—this arose both in the Bill Committee and during our witness sessions, as my hon. Friend and others will doubtless recall—is that despite the overriding impression that, given the sensitivity and importance involved and given how delicate some of these cases will become, legal experience would be a necessity, there is no requirement for that legal expertise. We must make the process involved in any public appointment much more robust, but that applies particularly to the appointment to a position as sensitive and delicate as overseeing freedom of speech on our campuses.
Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)
The hon. Gentleman just came out with the throwaway line that he was thinking of applying for the job. Well, good luck to him, but do his own words not rule him out? If he is a member or supporter of any political party, he is by definition no longer impartial. I find that a ludicrous statement, by the way, as I would happily see members of the Labour party chair things because I would consider that they would be impartial, but the hon. Gentleman obviously does not.
Matt Western
Of course it was a throwaway line, but the job does pay £100,000. Perhaps the right hon. Gentleman has a second job, but I do not, unlike so many on the Government Benches who may have second jobs. It goes without saying, in my book, that that person should resign if he or she is a member of a political party—that a person in such a sensitive role should be seen to be unalloyed by association, because perception is so important in this context. Of course I made that remark in jest, but it does seem to be a staggering amount of money that the Government are throwing at this post.
Matt Western
I read every word. I read them with interest.
Only last week, the HEPI student academic experience survey revealed that a majority of students—64%—either agreed or agreed strongly with the statement:
“I feel comfortable expressing my viewpoint, even if my peers do not agree with me”.
Only 14% disagreed.
Kim Johnson (Liverpool, Riverside) (Lab)
Does my hon. Friend agree that the legislation is totally unnecessary and divisive, with little evidence to support the Government’s position that there has been a rise in intolerance and a creeping culture of censorship? The Office for Students’ own data showed that out of 10,000 events with external speakers, only six were cancelled.
Matt Western
I thank my hon. Friend for her contribution. Yes, there are issues out there, but that is about the scale of it. That is what has been uncovered in the surveys and analysis done by the Office for Students and by others. The scale is being exaggerated by the Government in order to make this legislation. It would be nonsensical to ignore shifting attitudes, and new clause 5 would allow for well-informed public policy guided by evidence rather than by Ministers’ latest lightning rod of choice.
Our amendments 19 and 20 would ensure that non-disclosure agreements or confidentiality agreements between those listed in the Bill and higher education providers did not inhibit freedom of speech, save where it was expressly agreed to between the parties to protect intellectual property. I will defer to my hon. Friend the Member for Birmingham, Yardley, with whom I have tabled amendment 19, to explore that further. She is a tireless campaigner on the issue and I commend her work in bringing it to the House’s attention on Report. I hope that the Minister, who has previously stated her commitment to stamp out that practice, will take on board our suggestions.
Finally, I would like to take this opportunity to push the Minister on some of the finer points of the Government amendments. The illegal invasion of Ukraine by Russia has rightly thrown a spotlight on the source of foreign investment and money in our public institutions. The misguided “golden era” ushered in by David Cameron and George Osborne in 2015, in which foreign nation states acquired substantial control over key parts of our national infrastructure, must come to an end.
The Government’s new clause 2 is much preferable to new clause 1, tabled by Conservative Back Benchers, particularly on the risk-based approach of the Government’s suggestion, but I have some concerns about new clause 2’s practical effect. The Minister suggests that it is her stated aim to reduce the data burden in the higher education sector. It is for that reason that I am interested in ascertaining how the new clause will be both proportionate and balanced. For example, the threshold at which providers have to report foreign donations is set to be determined by the Secretary of State in regulations, so it is disappointing that once again the Minister seemingly chose to brief it to The Times that the threshold would be set at £75,000—as she mentioned earlier—rather than allow the House to have a meaningful debate on what is appropriate. This is not on the face of the Bill. Interestingly, when we contrast this to the reporting threshold in the United States, which is $250,000—just over the equivalent of £200,000—the Government seem at risk of disincentivising foreign investment by implementing additional bureaucratic burdens.
I am also concerned about the scope of new clause 2, and I would be grateful if the Minister could expand a bit more on what is meant by “constituent institutions.” How much direct control does a higher education provider need to have over a constituent institution for it to fall under the remit of the new clause? For example, would Cambridge University Press be covered? My hon. Friend the Member for Cambridge (Daniel Zeichner) referred to that earlier. Relatedly, some of the requirements in the new clause are quite technical and may require fine judgment. It is likely that the value of non-monetary benefits—human capital and access to data, for example—will be difficult to ascertain. Could the Minister therefore detail what steps she is taking to ensure that universities are supported in determining the value of the partnerships they sign?
The Government’s proposal hands the responsibility for the new clause to the director for freedom of speech, making the director’s appointment all the more important. This adds further justification to our new clause 4, and I hope that Conservative MPs will consider that when they go through the Lobby later. Given that the regulator has limited prior experience of dealing with research partnerships or commercial arrangements, what additional resources will be provided to the OfS to handle this new responsibility?
Labour has tabled some important amendments in the same manner and spirit as we did in Committee. Let us remember that we debated a staggering 80-plus amendments in Committee at that time—it is a 19-page report—and now we have these few. Such a number would seem to underline just what a big dog’s breakfast the legislation is, and I am sure that those in the other place will spend many an hour realising what poor quality red meat lies at the bottom of it.
Sir Iain Duncan Smith
I am grateful to be called to speak so early, Madam Deputy Speaker. I want to focus my comments on new clause 3, tabled by my hon. Friend the Member for Rutland and Melton (Alicia Kearns) and signed by myself and others. The issue that I wish to touch on is the behaviour of some universities with regard to funding from countries that have the exact opposite view from ours on how freedom of speech should work. It was suggested earlier that we should be very careful about trying to insert ourselves into the funding of universities, but I think to the contrary to some degree, and I shall raise a case relating to that. I believe that when money is accepted from countries whose purpose is to undermine the nature of how we live our lives—including in regards to freedom of speech—that helps to pervert the processes of the institutions and universities.
One important question is whether there is a weakness in the Bill in one particular area, and that is to do with the Confucius Institute. I do not apologise for naming that particular organisation, because countries such as Germany, the United States and others that are quite close to us have already decided that that institute is not based around learning and academia and that it is in fact set up for an ulterior purpose, which is essentially to bully Chinese students in particular, but even other students, and to report back on the behaviour of many Chinese students studying in British universities. This has been evidenced in a number of countries. I would therefore have liked to see the UK Government, in line with this amendment and national security, take the power to stop such organisations where there is clear and compelling evidence that their purpose is not the stated purpose of delivering Chinese language and cultural instruction but enabling the Chinese Government to understand who is saying the right things and who is saying the wrong things.
To that extent, the Confucius institutes have even inserted themselves into schools. Many Confucius institutes have developed strong ties with local schools, and their provision of language assistance is seen as a very high-value contribution. It starts early now, and it extends.
Jess Phillips (Birmingham, Yardley) (Lab)
The right hon. Gentleman is educating me. I have similar concerns in my constituency and across Birmingham. In recent weeks and months we have seen a huge resettlement of people from Hong Kong, and I want children to feel completely and utterly safe in their school environment.
Sir Iain Duncan Smith
The hon. Lady is right that a lot of Hong Kong citizens have come to the UK, and I embrace them all. I set up the Inter-Parliamentary Alliance on China, which has co-chairs on the left and right from 25 countries and many other members from Parliaments around the world, all of whom agree that the Confucius institutes pose a genuine threat. The fear factor means that many students of Chinese origin will not take part in debates because they genuinely fear the repercussions for themselves and their families when they go home. We cannot overestimate the power of organisations that represent a Government as intolerant and dictatorial as the Chinese Government. The UK Government have been slow to act on what is now clear evidence.
My right hon. Friend the Minister said the Bill will deal with the situation, and that the Office for Students will be able to take action where necessary, but I would like the Government to reserve that power to themselves as they understand the security issues in this narrow but very particular area.
Tim Loughton (East Worthing and Shoreham) (Con)
My right hon. Friend slightly understates the position in universities. He will be aware that Chinese students now account for some £2 billion of revenue for British universities, nine of which, mostly in the Russell Group, get 20% of their revenue from Chinese students.
There is now clear evidence that, through 30 Confucius institutes and beyond, undue influence is being exercised by Chinese students at the behest of China’s communist Government. The CGTN television station, which was fortunately taken off air by Ofcom, targeted British universities and offered students the chance to win thousands of pounds by becoming pro-Beijing social media influencers. Chinese students turned out to overturn freedom of speech and other motions in student union debates at China’s behest. Dangerous stuff is happening under our nose. We need complete transparency about exactly what is happening, and we need legislation to make sure it does not continue as it is.
Sir Iain Duncan Smith
I completely agree with my hon. Friend. He and I are both members of IPAC, and we have seen all this ourselves. Colleagues on both sides of the House are involved in IPAC, and there is compelling evidence of the Chinese Government’s growing influence on British academia through various organisations. Many do not recognise it. We have had meetings with Russell Group universities and individual colleges—I will address one in particular—in which we have explained this. Many had not really thought about it but, on reflection, realised there was a problem and that they had to start diversifying. One or two arrogantly refused point blank to admit or even accept the situation.
Jesus College, Cambridge has been incredibly deliberate and arrogant, which is why the Government need to go further. The Jesus College Global Issues Dialogue Centre received a grant of £200,000 from the Chinese state in 2018 through its National Development and Reform Commission. The Jesus College China Centre also has close financial and organisational links with the Cambridge China Development Trust, which is funded by the Chinese state. The CCDT donated £80,000 to the Jesus College China Centre over three years, and they share the same director. CCDT funding has been used to fund the Jesus College China Centre’s doctorships, scholarships, administrative support and seminars.
Jesus College received £155,000 of funding from Huawei in 2018. We have banned Huawei from our telecoms system because it is a security risk, yet it has set up a huge centre in and around Cambridge. For what purpose? To get in through the back door.
The GIDC’s white paper on global technology governance claimed an equivalence between the Chinese Government’s mass online censorship regime and the UK Government’s attempts to eradicate child abuse online—that is the key. The same paper falsely claimed that Huawei had freely shared all its intellectual property on 5G technology, leading the college to be accused of “reputation laundering.”
To those who say that money does not have an impact, I say, “Oh yes it does.” When money is repeatedly on offer, it tends to bend institutions towards the idea of having that extra money. I understand their concerns and their need for financial support, but the Government need to take this seriously.
The Chinese Government are committing genocide and using slave labour to produce goods in Xinjiang, and technology derived from UK universities is being used to spy on those slave labour camps. China is also using slave labour in Tibet, and it is imposing itself and locking up peaceful democracy campaigners in Hong Kong.
We rightly talk of free speech and the importance of our young people developing an instinct for argument, debate and balance, but these are lost to China and Chinese students, who are fearful when they come here. I accept that the Government think they have this covered, but I wish they would look again.
I congratulate my hon. Friend the Member for Rutland and Melton enormously on tabling new clause 3. If the Bill is not tightened up to that degree, many of us on the left and the right of politics will ensure in the other place that these abuses cannot happen. The lives of Chinese students and Chinese people more widely remain our responsibility. If freedom of speech is the subject of our debate, we should cry for how damaged and destroyed it is elsewhere.
Jess Phillips
It is an honour to follow the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith). I fear that Cambridge University will not come out well from my speech either.
The debate is about freedom of speech on campus. My hon. Friend the Member for Liverpool, Riverside (Kim Johnson) pointed to six cancellations—in my view, that is six too many—but I am going to talk about the silencing in non-disclosure agreements, which thousands of people are suffering from.
We know that the data on violence and abuse, and certainly on sexual violence, is a tiny fraction of the reality, but even that data shows that millions of pounds are being spent on this issue. The amendment tabled in my name and that of my hon. Friend and near neighbour the Member for Warwick and Leamington (Matt Western), would stop young men and women—including university staff—being prevented from speaking about their experiences on campus. That is what this is all about, isn’t it? It is about people being able to talk about their lives, experiences, beliefs and freedoms on campus. Currently, we are all sitting by while that section of the community, who may have been raped on campus, bullied, harassed or racially abused, can be silenced by that very institution and cannot speak about it at all. I am going to talk about those people.
Horrendous examples of silencing have been reported in the press. Brave women have spoken out even though they know the risks. According to one student, her university imposed a “blanket gagging order” on her after she alleged she was violently raped by another undergraduate. The victim claimed she was warned she would be expelled if she went to the press to report this violence or to talk about the college procedures. That gives you a clue as to where some of these people are from, because I said the word “college”; most other universities do not say that. The non-disclosure agreement was imposed. Apparently, the college had tried
“desperately to convince her not to complain”
and she had
“lost count of the members of staff who tried to silence, scare, threaten and undermine”
her.
According to an investigation by the magazine Elle, a student alleged she was sexually assaulted and then endured terrible treatment from the university relating to her claim of violence. Post-graduation, she complained to the university about how it had handled her situation. She was eventually offered £1,000 compensation, without any admission of wrongdoing, and with a non-disclosure agreement to prevent her from talking about it. The student, exhausted by her experiences, signed the NDA.
Jess Phillips
It does not seem very feminist, but I will give way to the right hon. Gentleman.
Jess Phillips
I almost wish for the right hon. Gentleman’s sake that I had taken the other intervention. Has he seen the figures on police rape recording and reporting? In the first instance that I was talking about, the individual absolutely went to the police. Of the 66,000 women—I am speaking only about women now; there will have been more—who came forward and said that they had been raped last year, a charge will have been faced in about 600 of those cases; and then look at the number of convictions. Are we expecting our institutions, our workplaces, our university institutions not to have a role to play in supporting people when that has happened? As I am sure the right hon. Gentleman know, the balance of probability has a different relation to civil law than criminal law, so the idea that if a woman did not go the police she should not be allowed to complain to her institution is not one that I recognise and it is not one that this House recognised when we set up an independent complaints system. However, what often gets said to women when they come forward to their employer, to their institution, is, “Why didn’t you tell the police?”
Alicia Kearns
I rise to urge the hon. Lady to name the institutions, because this Bill is about freedom of choice and of speech. I know that if I were a 17 or 18-year-old girl choosing university again, I would actively choose not to attend colleges or universities where I knew they might force an NDA on me if I was raped.
Jess Phillips
I will absolutely come on to naming some of those institutions. As I said, this was found by Elle magazine, which is collecting this data, unlike the Government at the moment. The article said the student claimed this arrangement felt
“worse than the assault—Dealing with this abuse of power was far more traumatic. It was emotionally exhausting and humiliating.”
Earlier this year, the Express took a day off from talking about Princess Diana and its investigation revealed that more than 3,500 cases of assault were reported in 78 institutions in the UK in the last five years. The figure consists of confirmed cases of sexual violence and disclosures made by both staff and students pending investigation. The 135 freedom of information requests sent to every university in the UK also revealed that many do not record figures of sexual assaults, so the overall number is likely to be much higher. So it is, “Just don’t record it and then it doesn’t happen.”
In 2020, a BBC investigation found that over 300 NDAs were used by universities in student complaints between 2016 and 2020, and that almost a third of all universities in England had used such deals in these circumstances. The probe discovered that universities had paid out £1.3 million on these deals, although the true scale is thought to be much larger. The campaign Can’t Buy My Silence was started by the brilliant and formidable Zelda Perkins, once an assistant to Harvey Weinstein and someone who had an NDA imposed on her related to his crimes, and Professor Julie Macfarlane. Their campaign has survivors’ testimony reporting that NDAs had gagged them from speaking of their experiences with family or loved ones, or even their therapists. I pay tribute to them and the work they are doing alongside the Minister, whom I know speaks to them. However, like me, they agree that legislation is necessary to tackle this.
So far, 66 universities have signed the Government’s pledge. I made this speech on Second Reading and since then the Government added “looking at non-disclosure agreements” into the violence against women and girls strategy, which was published late at the end of last year. I stand here in complete respect for the Minister. She has sought to do what she can to improve the situation. She has worked with the campaigns that I have talked about to get universities signing pledges. She is working with the Office for Students to look at regulation and at what needs to happen if these things are breached. Every Member of Parliament will have had to try to get a regulator to do something about their bad cases, and we are here with universities signing “pledges”. I do not know how we are going to know whether they are breaking their pledge if people have been gagged.
So far, 66 universities have signed the Government’s pledge. That is great, but why haven’t the others? I encourage every university to do this. There are over 130 universities in the UK. What about those students? What about their right to speak out? As the hon. Member for Rutland and Melton (Alicia Kearns) pointed out, she would want to hear about this. I am not going to list all the universities that have not signed it, but here are some: the University of Cambridge, King’s College London, the London School of Economics, the University of Wolverhampton and the University of Sunderland. That is just to name a few. Perhaps it is taking time and perhaps they are getting around to it. I very much encourage them to do it.
Just to show the House what I am talking about, I have an example here of one of these NDAs. This is the kind of thing that students are asked to do. It is not necessarily called a non-disclosure agreement, and that is a way out of this; the right hon. Member for Basingstoke (Dame Maria Miller) and I often challenge organisations when they say they do not have NDAs, because we have them in our inboxes and they call them something else. They will call them a “confidentiality agreement”. In lots of cases in universities we have seen the growth of “no contact arrangements”.
I will read this agreement out—this is from the university. It says, “We recognise the sensitive nature of the allegation involved. In consideration of our duty of care to both parties, we have therefore concluded that in the interest of both parties a non-contact arrangement is required.” This young woman who had been raped was told, exactly as the person accused of raping her was told, that she had to stay out of certain places; she could not go to certain things at certain times. She was told that she, “Is not to enter the building”, that her, “Fob access will be disabled” and that she is, “Not to enter the building unless for tutorials and classes notified in advance.” She is told, “Fob access will be disabled unless we have had advance notification”—this is a rape victim being told that she has to report to a guard so that she can go to her classes. She is also told, “You are asked not to make any information about these allegations, the police investigation or the safeguarding arrangements that we have made available on any form of public media”—so she should not talk about this document. Finally, she is told, “Evidence of repeated breaches of this arrangement and/or a serious breach of conditions—entering an embargoed building or publishing material in the press—will result in your expulsion.” That is from one of the finest universities in the world.
This is about people’s silence, but not just their silence; it is about their movement, their freedom and every element of their freedom of expression being stopped. Yet there is nothing in the Bill about freedom of speech, freedom of expression or freedom to study. There is nothing that the Government are proposing to do or to put in legislation. I simply do not understand why they would not have taken this opportunity to do something.
I met the Minister last week and, as I said, I do not doubt her total and utter commitment. Incidentally, she said earlier that “legislation of this nature can spur culture change.” Yet she told me last week that legislation is not always the answer—[Interruption.] I will take the intervention, by all means. No? Okay. She also explained to me that the Office for Students is looking at regulation to, for example, take away the status of a university if it is guilty of a breach. I responded—and I say again—that the idea that a rape victim who has signed a non-disclosure agreement will take down Cambridge University is the stuff of cinematic hopeful glory. I will believe that when I see it, which everybody in this building knows will be never. Why would we want to push universities and victims into that position? Why would we not legislate to stop the use of non-disclosure agreements?
John McDonnell (Hayes and Harlington) (Lab)
I do not want to spoil the flow of my hon. Friend’s incredibly eloquent speech, but non-disclosure agreements not only apply to students but are used extensively with staff. When we have discussed this issue before, the argument has been that there is sufficient employment law to deal with these matters. There clearly is not, because it does not reflect the balance of forces between employer and employee and the delays that take place. Surely we must legislate to scrap NDAs altogether, and the first step could be the inclusion of my hon. Friend’s amendment in the Bill.
Jess Phillips
I absolutely agree, and the amendment clearly covers staff being able to talk about their experiences. The Minister cited a member of staff who felt compelled to leave their employment because of what the Minister rightly pointed out was bullying. Had that member of staff signed a non-disclosure agreement, the Minister would never have been able to talk about them, and nor would that particular employee of that particular university. We would not even know what had happened. Had a non-disclosure agreement been signed in that case, which was, I believe, at the University of Sussex, the Minister would not have had her helpful example.
I took part in a debate on the television the other day about freedom of speech. A Government Member of Parliament, who I like and respect, turned to me and said, “The thing is, Jess, that no one can be forced to sign a non-disclosure agreement”—I just said my own name. Is that allowed? I don’t have to refer to myself as the hon. Member for Birmingham, Yardley?
Jess Phillips
Yes, that’s right.
That Government Member said, “You can’t be forced to sign”, but that is to totally misunderstand the power imbalance. Someone might have worked hard and be the first in their family to go to university. They might have studied and done everything they could, because they wanted to go and make something of themselves. They might get into an institution that they are proud to say they are from. The fact that they could be raped on that campus by another student and complain, but then be threatened that they will be expelled if they speak out points to an enormous power imbalance. It is something that this House should legislate on for the sake of freedom of speech.
I welcome the Minister saying that she will take the proposals away, listen and perhaps do something in the House of Lords later in the process, but under this Bill, without our amendments, if a woman or a man, whether staff or student, is raped on campus, that person’s freedom of speech will be completely and utterly denied on campus and outside, and we would do nothing about it. Freedom of speech surely has to mean freedom of speech for all.
Sir John Hayes
Benjamin Disraeli said:
“Upon the education of the people…the fate of this country depends.”
That greatest of Conservative Prime Ministers went on to say:
“A university should be a place of life, of liberty and of learning.”
However, if the flame of liberty is to burn brightly, and if the university sector is to be a beacon of learning, we must face up to the fact that, in many of our universities, freedom of speech is in jeopardy, censorship is happening as we speak tonight, and academics and students feel intimidated by that censorship.
We know that from the evidence that the Bill Committee heard from academics on the frontline of that struggle. The shadow Minister, the hon. Member for Warwick and Leamington (Matt Western), quoted Professor Arif Ahmed, who was clear that there is a series of means by which universities restrict and limit freedom of speech. He said:
“what I mean is universities placing formal obstacles in the way of people saying things that are perfectly legal.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 13, Q22.]
He went on to say, quoting the Universities and Colleges Union survey of 2017, that
“35% of academics self-censor”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 16, Q27.]
because they are nervous about saying what they truly believe; the number of students doing so is probably even greater. The truth is that there is a tyrannical minority in universities, among the academic staff and in the student body, who do not believe that universities are places of light, liberty and learning; instead, they think that universities should limit free speech.
I find it hard to understand why Opposition Members such as the hon. Member for Kingston upon Hull West and Hessle (Emma Hardy), whom I respect greatly, and the hon. Member for Warwick and Leamington, with whom I have—I was going to say “collaborated”, but that makes me sound rather like a fifth columnist—co-operated in this place on many subjects, oppose a Bill designed to reinforce precisely the freedoms that are essential to an open society. I thought about that and cogitated on how it could be that such decent and honourable people—I include the hon. Member for Cambridge (Daniel Zeichner) as well—could do this.
In doing so, I should draw the attention of the House to my entry in the Register of Members’ Financial Interests in respect of higher education, as I did perpetually and—some people felt—relentlessly during the previous stages of our consideration of the Bill. By the way, I stimulated a number of others to do the same, and I have no doubt that they will want to chip in on a similar basis this evening.
The conclusion I drew, having thought about it, was that those decent people on the Labour Benches who certainly believe in free speech and the exchange of honestly held opinion find that hard to reconcile with a zeitgeist that is preoccupied with a fear of causing offence. We are perpetually told now that because we must not make people feel uncomfortable, we must not offend them. We in this House know, do we not, that the ability to alarm is closely associated with the ability to inspire, that the ability to disturb is intrinsically linked with the ability to enthral, and that even the capacity to shock is necessary in the development and exposure of new ideas and fresh thinking?
Sir John Hayes
Having said such nice things about the hon. Lady, it would be extremely impolite of me not to give way.
Emma Hardy
I say to the right hon. Member that, as Bill Committees go, it was a very enjoyable one. I thank him for being one of the few Conservative Members who listens to the contributions. On the point he is making, it is not about disagreeing with this idea of shocking people or of having different opinions; the fundamental problem, as I have said repeatedly, is how this piece of legislation interacts with existing legislation already in place. How does this interact with equality legislation? How does this interact with other existing pieces of legislation? My concern is further developed when I see the person who is making the decision on how these different pieces of legislation interact with each other. It is, as has been mentioned—and this is the reason for new clause 4—somebody appointed by the Prime Minister of the day, which then leads to all those issues around impartiality of process. We have a situation here where we have a piece of legislation that almost buts up against existing equality legislation, but it is not quite clear how their processes will rub together, yet there is no specification that the person making the decisions has to have legal experience or knowledge; they are instead a political appointment. That is where we have the difficulty—it is not with freedom of speech, but with the legislation itself.
Sir John Hayes
At the risk of putting our professional association in jeopardy, I say to the hon. Lady that I agree with her. I agree that the Government need to look at the equality legislation. I note the Attorney General’s recent comments that, as well as unpicking the Human Rights Act 1998, which we certainly should do without delay, we need to revisit the Equality Act 2010 and the rest of the long tail of Blairism. The hon. Lady is right that some of that unfortunate legislation on the statute book is inhibiting much of the very good work that the Government are trying to do. In particular, she is right—this was raised in Committee by me and others—that the Government need to be very clear that this legislation can be squared with other statute and, so the means by which it might be challenged.
Emma Hardy
I think it might also be worth the Government having a look at the recent legislation that they have already passed on the Police, Crime, Sentencing and Courts Act 2022 and the issues around protest and free speech. We could end up with a situation where free speech is the preserve of students who attend university, but those outside university will have their free speech limited unless they are very, very quiet and do not protest too loudly. We could end up with more conflict, with one part of the Government saying one thing in terms of restricting protest, and another part of the Government saying something else about supporting free speech. It is fair to say that having this Bill along with existing and proposed legislation will create a muddle.
Sir John Hayes
We are dealing with a complex subject. Free speech by its very nature means people saying all kinds of things in all kinds of ways about all kinds of subjects. The hon. Lady is right that there will be tensions to be settled, which is precisely why the Government have put in place mechanisms to do that. They are going to appoint, as was said earlier, an office with responsibility for ensuring that this Bill’s intentions and provisions are applied consistently. The Government acknowledge the difficulties that she has highlighted, which is precisely why they are putting in place a person and team to do exactly that.
Sir John Hayes
I can see that my right hon. Friend is about to make an erudite intervention.
Dr Lewis
You can always hope, Mr Deputy Speaker.
Does my right hon. Friend not feel as I do that the interventions that he has just taken show that perhaps the diminutions on free speech have already spread into other areas of legislation rather further than he and I would like them to have done?
Sir John Hayes
I agree entirely, which is precisely why this Bill is so welcome, but it needs to be part of a bigger programme of work by the Government to do what I described earlier, which is to unpick some of the legacy of the dark days of Blairism and the impact that that has had on all kinds of aspects of our wellbeing. My hon. Friend is right. This Bill is significant, but modest, so let it be the beginning of a crusade to establish freedom as the default position across all our legislative considerations in exactly the way—with erudition and diligence, matched by experience—that my right hon. Friend illustrates.
Free speech is complex and, in the words of the hon. Member for Warwick and Leamington, may be seen as an abstraction, but if it is an abstraction, it is one that is essential for the wellbeing of our free society, for it is at the very heart of what an open society is all about. The ability to say things which, as I said earlier, alarm, disturb, or even shock, and hear things with which we disagree is the very nature of what good universities are all about. I fear that that is jeopardised by some of the thinking that permeates universities, particularly university leaders and managers. For example, Professor Ahmed also spoke of
“issues to do with race, with transgender, and with Israel and Palestine on which they were simply unwilling to say what they thought”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 13, Q22.]
people fear the consequences of doing so. It is not just those issues, although those are notable among the list of things that people now regard as beyond the scope of free and open debate.
Miriam Cates (Penistone and Stocksbridge) (Con)
My right hon. Friend is making an excellent speech. Does he not agree that much of the controversy surrounding this Bill comes from a conflation of physical safety with emotional and intellectual safety? Although students should have the right to be physically safe on campus, there is no right to feel safe and, as he rightly says, universities are the place where we should feel emotionally and intellectually challenged and, perhaps, unsafe at times.
Sir John Hayes
Burke said, as you well know, Mr Deputy Speaker:
“He that struggles with us strengthens our nerves, and sharpens our skill. Our antagonist is our helper.”
Part of developing intellectually and personally, particularly for young people at university—we should not assume that only young people go to university—is exactly that. It is being stimulated, sometimes being excited, sometimes being challenged and, yes, sometimes being offended. I am often offended in this Chamber by all kinds of things, and not always things that I hear from those on the Opposition Benches.
Emma Hardy
Even if the right hon. Gentleman is offended, he is never offensive, so I always enjoy debating with him. On the issue of the need to challenge and to shock, there is always a line to be drawn somewhere. In Committee we talked about the offensiveness of holocaust denial. Okay, there is not a physical threat from holocaust denial, but I think that we would all agree that it is very offensive and it is therefore very hurtful. A line will always have to be drawn when it comes to free speech, but we have the difficulty, which I keep going back to, of who makes the decision on where that line is drawn—what experience do they have, what criteria is set, what is their knowledge, and what is their understanding of the subject. Having the right person at the top is important. I am sure that the right hon. Member will accept that, yes, someone might want to offend, to shock or to stimulate discussion, but there is always a point at which we say, “No, that is not intellectual stimulation. That is just offensive and rude and not part of an intellectual debate at university.”
Sir John Hayes
Yes, but the problem is that that line moves with the times, with fad and fashion, with what I described earlier as the zeitgeist. Perhaps the most chilling example of that is the case of Kathleen Stock. The hon. Lady will remember that Kathleen Stock gave evidence to the Bill Committee of which she was part. Within a few weeks, Kathleen Stock was driven out of her job as a distinguished professor at the University of Sussex by the mob, a group of students who pursued her and intimidated her and her family.
Kathleen Stock received scant support from many of her academic colleagues, although latterly the university authorities claimed they were supportive, and she was so affected and so damaged by all that that she ended up leaving the job she loved. I thought how chilling and ironic that she should have been one of the people who came to us, as Members of this House, to a Bill Committee debating this Bill, and yet just weeks later found herself a victim of the very problem she highlighted and emphasised in her evidence.
I will move fairly rapidly on to the amendments that stand in my name, Mr Deputy Speaker, because otherwise you will claim that I am making a Second Reading speech—and with some just cause.
Sir John Hayes
But before I do so, I will happily give way to my right hon. Friend.
Dr Lewis
My right hon. Friend is so kind. He has just given a terrible example at the extreme end of the spectrum of intimidation and restriction on free speech, but does he share my concern about the paranoid issuing of so-called trigger warnings or alerts, which are meant to protect students from hearing anything that they might find in the least discomfiting or disturbing? How does that prepare them for going out into the real world, where they are, whether they like it or not, going to hear things that are not to their liking? They will be under-prepared for that terrible ordeal.
Sir John Hayes
Almost every part of the canon of our great literature now seems to come with a health warning. From “Moby-Dick” to “Jane Eyre”, we are told that books are desperately dangerous for young people to read. That this is happening in schools and, amazingly, in universities is almost beyond belief. Snow has turned to ice: they are no longer snowflakes, they are in deep freeze, those people who dare not even read Austen, the Brontës or George Eliot—of those three, I strongly recommend George Eliot, by the way, but let us move on before I get into any more literary considerations.
Sir John Hayes
I thought my right hon. Friend was going to challenge my literary knowledge, but let us move to the amendments.
The Government have moved a considerable way since we debated the matter in Committee, and I congratulate and thank my right hon. Friend the Minister for Universities for her earlier words and especially for what she has done. She listened carefully in Committee. Often, when Ministers in Committee say, “I’ll take that away and think about it.”, we know they are going through the motions, but not this Minister, any more than I did when I was a Minister.
I think it is important that Bills metamorphosise through scrutiny and that Governments listen to argument—including arguments from those on the Opposition Benches, by the way. When I was a Minister, I would often go back to my civil servants and say, “Well, what the shadow Minister said seemed to make a lot of sense to me. Why aren’t we doing that?”. That is a very effective way for Ministers to challenge their own officials when they hear cogent and sensible arguments put from all parts of the House. That is precisely what this Minister did, and the Government amendments, on which I will not comment in any detail, reflect her consideration of the strong arguments that we used to strengthen this Bill, which she has now done in a number of respects.
Jesse Norman (Hereford and South Herefordshire) (Con)
I rise to speak to new clause 1, which stands in my name and in the names of my colleagues, my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) and my right hon. Friends the Members for Harlow (Robert Halfon) and for Ashford (Damian Green). I thank Professor John Heathershaw and his colleagues at the University of Exeter for their input.
This Bill is a very serious one, and the issue I raise of transparency in our universities is a very serious one. It has been much publicised of late in the newspapers in relation to some very distinguished and famous universities that have been alluded to already in this House, and rightly so. It is often misunderstood or underappreciated in the higher education sector how important the issue of undue influence and non-transparency is to the reputation of that sector, which is one of the crown jewels of our country both economically and culturally.
Universities exercise a wider influence not only over the young people whom they educate, but more widely in our public life, yet no standard approach has existed to date for handling foreign donations. No single standard has been created to allow donations to be made transparent, to be made public and to be properly tracked, and, therefore, for students and other donors and the public at large to understand whether there are pressures of a financial nature, and if so what pressures there may be, on the institutions with which they may have to deal.
Instead of this panoply of different approaches and different thresholds, and this lack of transparency and culture of non-disclosure, it is important that the Bill addresses those matters and brings some order to the situation. That is what my new clause and the other new clauses, which I am delighted to see have been tabled in a similar spirit, are designed to address. In my case, the measure is aimed not at any specific country or individuals, but generally so that there should be a wide understanding of the lack of transparency and a wider solution to it. I take my hat off, metaphorically, to the Minister, her Secretary of State and her officials, because the Government have substantially accepted my new clause, and indeed—dare I say?—arguably even improved it in relation, for example, to politically exposed persons. I thank her and other Ministers for the very constructive attitude that she and they have taken in relation to this important issue.
I will make a couple of small points in passing because this is still a live matter and officials will wish to think about the implementing regulations. The first is about the enlarged role for the Office for Students and the need for it to be given a role that it can dispatch rapidly and effectively as well as impartially. More widely, I note the essential importance of the higher education sector and of our universities being zealous in themselves, as institutions, in preserving freedom of speech and the culture of a deeper freedom of speech that, as so many Members have said, they have sought to defend in their treatment of students and colleagues. That remains vital.
I am delighted to support the Government amendment and withdraw my new clause 1 as a result.
Alicia Kearns
I rise to speak to new clause 3, but I wish first to welcome the significant work done by my right hon. Friend the Member for Hereford and South Herefordshire (Jesse Norman), which has had an implication for that which I sought to achieve, and to touch briefly on new clause 19, tabled by the hon. Member for Birmingham, Yardley (Jess Phillips), with which I have enormous sympathy. When you are an alumnus of a university, you have a great ability, you would hope, to influence it, so I place on record that if Fitzwilliam College, Cambridge is using NDAs, it can expect this not to be the last it will hear of it. I will work with the hon. Lady to call it out if it is doing it, but I am sure that there is absolutely no way that the place that gave me an incredible three years would be doing that.
New clause 3 was tabled to solve a series of problems that we face in our education system. We exist in a state of hybrid warfare where we do not necessarily know that we are at war. Indeed, more often than not our enemies do not tell us that we are at war—the most effective manner to attack us. In this war they use every possible lever of influence to attack us. It is naive, sadly, but our universities are failing to accept that they are being weaponised and used against us in a state of hybrid warfare. The Chinese Communist party is at war with us, because between now and 2050 it expects there to be a war between two world orders—theirs and ours, ours being the one that believes in the rule of democracy and standing up for freedom of speech, which this Bill so focuses on. We might not realise that we are at war, but we are, and for decades now we have failed to recognise that. It is not enough to say, “Bad Chinese Communist party—stop doing what you are doing in trying to achieve your goals and the continuance of your power.” We have to take the fight to it in terms of standing up for what we believe in, standing up for our world order, and, most importantly, building resilience within our system.
That is what my new clause focuses on doing—tackling the unintentional ignorance, or potentially wilful deceit, of those who do not recognise the seriousness with which our education system is under attack. Everyone plays a role in protecting freedom of speech. That is why I am so grateful to the very many colleagues who over the past few days have spoken in support of the new clause and given support on the issue across the House. I also thank the Department for Education, and particularly the Minister, who has been in constant dialogue with me and has adopted the ambitions of the new clause completely. I know that in coming months we will work together to make sure that we build the resilience that is needed in the education system.
My new clause particularly seeks to focus on Confucius institutes, which play an enormous role in the teaching of Mandarin and all that comes with learning that language—cultural understanding, historical understanding, debates about the present day, and debates about the entire concept of the country and how it feels, breathes, lives and sees itself. We have 30 Confucius institutes in this country. Nowhere else in the world has anywhere near 30. One might ask why Scotland has the highest number of Confucius institutes in the entire world. There is a reason why the Chinese Communist party has chosen to infiltrate Scottish education and to try to force its own narrative within those areas. More concerningly, almost all UK Government spending on Mandarin language teaching in schools, which is £27 million from 2015 to 2024, goes through Confucius institutes.
Our students and our kids—our under-18s—are being taught Mandarin by Confucius institutes, which are an arm of the Chinese state. Confucius institutes are supervised by the Chinese Communist party through the Ministry of Education. They are not allowed to hire teachers unless they have been vetted by the Chinese Communist party. I have recently discovered that Edinburgh University’s Confucius institute has representatives of the Chinese Government’s embassy on its board. This is absolutely outright political intervention. Teachers are not allowed to cover issues such as Taiwan or Tibet, which are apparently sensitive. This is deeply concerning. Lancaster University and Edge Hill University rely on CIs to provide teaching for undergraduates. We cannot allow a hostile power to capture our education provision. That is why we need transparency.
I thank my right hon. Friend the Member for Hereford and South Herefordshire because his new clause has allowed us to bring in the requirement to report when universities take in foreign funding. These safeguards bring us into line with the US, Germany and the Netherlands, all of which discourage their universities from using Confucius institutes or introduce mandatory financial disclosures, because British students deserve a choice. They should not be forced to learn a language through the prism and narrative of a genocidal regime. That is all we are trying to do. We are not anti-China; we are trying to create resilience within our system. I am pleased that the Government are taking action and that under their amendments universities and student unions will be required to register funding arrangements. The Office for Students will have the power to force universities to provide alternative Mandarin education or to terminate Confucius institutes’ contracts.
Sir Iain Duncan Smith
I congratulate my hon. Friend on her new clause. I understand that the Government have moved on the matter, and I congratulate my right hon. Friend the Minister. However, does my hon. Friend agree that there is one other element to this, which is that if the Government are in possession of clear evidence that there is a threat to the security of the state through interventions by things such as the Confucius institutes, they should retain the power for the Secretary of State to deal with that directly without necessarily going to the Office for Students?
Alicia Kearns
I thank my right hon. Friend, who has been enormously supportive of the new clause. I agree. I would have preferred to see these powers sit with the Secretary of State, but the Government are not willing to give on that. However, they have made it clear—I challenged the Minister in her opening remarks and she confirmed this—that the Secretary of State for Education will have the ability to direct the Office for Students if required.
I would argue that it is impossible for Confucius institutes to operate in this country without undermining our national security. They are an instrument of the Chinese Government and their propaganda wing with one sole goal. It is therefore critical that the Secretary of State directs the OfS where needed, and I urge him to regularly review its progress. I believe that the message going out from this House today is clear—that we have the power to terminate hostile states’ programmes and we must protect academic freedom.
On next steps, this is about not just building resilience but offering alternatives. As China’s role on the world stage grows, we have an amazing emerging pool of talent of Chinese speakers and China experts. We must provide alternative opportunities for the learning of Mandarin. I can think of no better way to do that than through our friends in Taiwan, whose track record in providing language courses is exemplary. They already work with our Foreign Office and intelligence services in providing these language lessons. We must also fund Mandarin education.
I thank the Minister for working with me to adopt these measures and for safeguarding academic freedom. My new clause provides a duty on financial disclosures, and it offers an alternative in the ability to terminate Confucius institutes and the power of the Secretary of State to direct, but I will not press it to a vote. We should be proud of British universities and proud to stand up for liberty and academic freedom. Without academic freedom, there is no open dialogue; without dialogue, there can only be division. It is important we use this Bill as the first step in sending a clear message to the entire education sector and the Chinese Communist party that we will not give them a back door to undermine our country and our national security through our universities.
Miriam Cates (Penistone and Stocksbridge) (Con)
Unlike all the other speakers in this debate, I was not on the Bill Committee, which is a shame, because it sounds like it was very lively, and I have not tabled my own amendment. I rise instead to speak in support of Government amendments 1 to 4, 6 to 10 and 16. I am absolutely delighted that this Higher Education (Freedom of Speech) Bill was carried over from the last Parliament.
We have heard today that over the past few years, there has been a growing and concerning trend to stifle free speech on UK university campuses. Since this Bill was published last year, we have seen: the attempt to shut down and harass the Israeli ambassador at Cambridge University; the vicious and, as we have heard, ultimately successful campaign to remove Professor Kathleen Stock from her post at Sussex; and, just last month, the efforts of an angry mob to silence my right hon. Friend the Secretary of State for Education at Warwick University. It is no wonder that he has prioritised the return of the Bill.
Jim Shannon (Strangford) (DUP)
I thank the hon. Lady for the stance she has taken in this House and in every role of her life. She will probably be aware of a petition signed by 15,000-plus organised by the Society for the Protection of Unborn Children. It supports the Bill because it gives its members the freedom that they do not have. She will be aware of calls for pro-life students to be given a voice. Pro-life students are often the recipients of that discrimination. Does she agree that freedom of speech must be upheld for all students, and especially those who take a pro-life position and stance?
Miriam Cates
I absolutely agree with the hon. Gentleman. The belief that human life starts at conception is a scientifically valid belief, and one that I hold myself. Students and staff should absolutely be protected in reflecting that view. He leads me on to my next point, which is that for every high-profile case we have discussed in the House today, many more never make the headlines. Underneath these incidents lies a culture where students and academics alike are becoming afraid to discuss and share their views. Last October, the University and College Union published a report showing that 35% of UK academics had undertaken self-censorship for fear of negative repercussions, such as the loss of privileges, demotion or even physical harm. The report’s authors commented:
“Self-censorship at this level appears to make a mockery of any pretence by universities of being paragons of free speech and…the pursuit of knowledge and academic freedom.”
The evidence is clear: free speech and academic freedoms in our universities are under threat, so I welcome the Government amendments that will strengthen the Bill further. Amendments 1, 2 and 16 extend protections to academics by removing the express limitation that academic freedom covers only matters within an academic’s field of expertise. They are important: first, because in many disciplines it would be hard to define exactly where the boundaries of a particular field lie; and secondly, because it is right to recognise that research and ideas do not exist in silos. There are obvious crossovers, for example, between science and ethics, politics and economics, philosophy and history. We need our greatest minds to be free to write, to speak and to conduct research in an unrestricted way for the benefit of our whole society.
Sir John Hayes
As ever, my hon. Friend is making a compelling case. University authorities are often either complicit in this, or in denial. The Bill will send a signal to them that it is simply not good enough to brush the attacks on freedom under the carpet. I hope that she will press the Government to go still further, as I have done, in ensuring that the Bill has all the provisions needed to ensure that freedom is maintained.
Miriam Cates
My right hon. Friend is right: this Bill is an important marker for universities, which will be forced to recognise that these are not specific isolated issues, but that there is a culture change that needs to be addressed across our whole country. We are also seeing it in other countries in the world, particularly America.
I support the amendments to remove the restriction on field of expertise, and I also support Government amendments 3, 4 and 6 to 10, which will ensure that higher education providers cannot require visiting speakers or hosting bodies to bear some or all of the costs of security. This will prevent no-platforming by the back door. As my right hon. Friend the Minister has already said, if universities have a physical safety and security issue on campus, they should urgently address the root of that.
On safety, amendment 18, in the name of the hon. Member for Warwick and Leamington (Matt Western), would compel the Office for Students, when considering a free speech complaint, to be mindful of the right of students to feel safe on university campuses. I have no doubt that the amendment is well meant, and I listened carefully to his arguments, but I fear that it would further embed the culture and attitudes that have led to the chilling effect on free speech and that have made this Bill necessary.
In the amendment, as on campus, we see the conflation of physical safety with intellectual and emotional comfort. Students should of course be physically safe, and higher education institutions have a duty to follow health and safety law, like all other organisations, but I suspect that is not what the amendment is getting at. Universities should absolutely not be cultivating an atmosphere on campus where students believe they are or should be free from emotional and intellectual discomfort. Just as our bodies must go through training, challenge and discomfort to become physically fit, so our minds must experience challenge, discomfort and sometimes even offence to become stronger, more resilient and more wise.
In the recent book, “The Coddling of the American Mind”, the authors describe “anti-fragility”, the idea that young people’s brains must be exposed to challenges and stresses, or they will fail to mature into strong and capable adults able to engage productively with people and ideas that challenge their beliefs. Nowhere is it more important to understand the concept of anti-fragility than in our universities, where institutions are cultivating minds that will become the thought leaders of tomorrow. Since our universities act as an incubator for wider public culture, we will fail to uphold freedom of debate in this country if we fail to uphold it on campus.
Freedom of speech is the bedrock of democracy. As a recent New York Times editorial put it:
“Ideas that go unchallenged by opposing views risk becoming weak and brittle rather than being strengthened by tough scrutiny.”
We saw the impact of that cancel culture in political and social debate during covid, where damaging, un-evidenced, ineffective and wasteful policies went unchallenged. If we value the kind of rigorous debate that upholds democracy and ensures the best policies are produced, we must not allow this concept creep of the term “safety” on campus.
Despite levelling up, Brexit and enormous economic challenges, this is possibly one of the most important Bills making its way through Parliament, because our ability to unite and level up in this country is threatened by the culture on campus. The starkest division in British society—not only in voting behaviour, but in social values—is between graduates and non-graduates. The trend towards a homogenous worldview in our higher education institutions is exacerbating this division. Instead, we need our universities to be places where it is the norm for competing ideas to co-exist and to be openly interrogated and challenged by evidence.
Jess Phillips
I want to challenge the idea that university students will all be walking like lemmings into the light unless we do something about it. At my university, the right hon. Jack Straw, who was then a Labour MP, was banned from the student union—I forget why. He was the only person it banned, and I walked through that door past the plaque banning him, and I am a Labour MP now. I think the students are probably going to cope with some of this.
Miriam Cates
I thank the hon. Lady for her intervention. She gave a passionate speech, and I fully support the many things she is doing to uphold women’s rights, but this is needlessly being made a left/right issue. Many of the incidents we have talked about today are about those on the right being cancelled, but it is much wider than that.
Miriam Cates
I am very sorry to hear it. The hon. Lady absolutely should not be. What I am trying to say is that this is a much wider issue than the particular incidents that have made the headlines, and some deeper culture changes need to take place. That will take time, and we need to do a lot in schools as well.
I very much support the Bill. Hopefully it can narrow the divide that we see in society. I very much support the Government amendments, which will do a lot to protect freedom of speech.
Michelle Donelan
With the leave of the House, I will speak on the non-Government amendments. New clause 1 seeks to improve transparency, especially in relation to foreign donations, and new clause 3 would place a duty on higher education providers as part of the promote duty to report information about foreign language, culture and exchange programmes and courses to the Office for Students and the Secretary of State. The Secretary of State would then be empowered to direct them to terminate the partnership or offer an equivalent if there were concerns about freedom of speech.
My hon. Friends are absolutely right to promote the importance of transparency of overseas financial arrangements, and we agree, which is why Government new clause 2 addresses those concerns. New clause 2 also requires the reporting of funding from certain overseas educational partnerships, including Confucius institutes, which addresses new clause 1 and the first part of new clause 3.
New clause 3 would have unintended consequences and place an unnecessary burden on the sector. Under new clause 2, there would be a financial threshold and countries such as NATO allies would be exempt. New clause 3 has no exemptions, which would mean that every single kind of partnership would be covered from the Turing scheme and third-year language students studying abroad with partner universities to important international research exchange programmes. The burden on providers to deal with that information would be disproportionate and would stifle the ability of our world-class universities to work with global partners on important research programmes.
The Government take the concern regarding foreign interference extremely seriously, however, which is why we developed a cross-Government programme of work to counter those threats, and we are continuing to work with providers to help them to understand the threats and respond. Government new clause 2 will help us to do that, and the Office for Students could utilise a range of enforcement powers to issue fines, close programmes such as Confucius institutes, or mandate universities to offer alternatives to students if that was necessary to secure free speech. As I said, however, new clause 3 would have unintended consequences.
Amendments 19 and 20 would provide that a non-disclosure or confidentiality agreement with the governing body of a provider did not mean that members, staff or students and visiting speakers could not speak freely. I stress that I fully support the spirit of this amendment; it is almost unimaginable to think of anything worse than suffering sexual assault and then being pressurised into being silent. I have been very vocal about the fact that our universities should never use NDAs to silence victims of sexual harassment, which is why I launched a pledge in January to end the use of NDAs. Some 66 universities are now signed up, 62 of which are in England, and three Oxford colleges.
We have a long way to go, which is why I am constantly talking to universities and working with Can’t Buy My Silence to call out those who have as yet failed to sign the pledge, but I know that a number will sign imminently. When it comes to the use of NDAs and sexual assault, the higher education sector has an opportunity to lead the way and show others what can be done.
We have also asked the Office for Students to impose a binding condition of registration on universities to ensure that they properly tackle sexual misconduct, which we intend to deal with that sort of behaviour. This would have teeth and it would mean that universities could be fined up to half a million pounds; they could even lose their degree-awarding powers. The ramifications would be big, and it would mean that the lawyers who developed those NDAs would be breaching the registration condition by doing so. We are the first Government who are prepared to tackle this issue, and I shall continue discussing with colleagues on both sides of the House all the ways in which we can tackle sexual harassment in universities, because that issue is very important to me and we will be doing more.
Amendment 17, which would widen the definition of academic freedom, is not necessary, because all the proposed new paragraphs are already covered by Government amendment 1, which will remove the requirement for academic freedom to be within an academic’s field of expertise. New clause 6 would add a new definition of academic staff, which I outlined in my opening speech.
New clause 7 and amendment 21 would change the definition of harassment in the Equality Act 2010 and under the Bill. I fully agree that there are occasions when universities have misapplied the Equality Act and have relied on it to wrongly shut down lawful free speech. There is both a subjective and an objective element as to whether harassment has taken place, and that should not be based on the views of just the complainant. Indeed, we saw a case last week where the University of Essex had to amend its policies following welcome pressure from the Free Speech Union. I assure hon. Members that once the Bill has passed, the new director of the Office for Students will ensure that providers are complying with the Equality Act as it is written, rather than overreaching.
Sir John Hayes
I am grateful that my right hon. Friend is addressing the amendment that stands in my name and that of my hon. Friend the Member for Ipswich (Tom Hunt). Part of the problem is that universities are drawing up policies for dealing with complaints about free speech and its protection that are themselves faulty; they are often based on advice from individuals and organisations that have a skewed view about the relationship between free speech and the Equality Act. Will she look at those policies and their sources, and the advice that universities are receiving?
Michelle Donelan
My right hon. Friend is correct. As I said, some universities have misinterpreted the Equality Act, which is why comprehensive guidance will be produced by the new director that will be the main source that they should refer to, rather than external agencies.
John McDonnell
On the point about advice, we are dealing with what has obviously become a contentious issue that often relies on subjective judgments. The advice that universities will take will come from the director for freedom of speech and academic freedom. Does it not behove the House to ensure that that person has the absolute confidence of those universities? New clause 4 simply says that that person will not be associated with a political party and will be appointed by an independent panel, and that a Select Committee will have a role in confirming that appointment. That will hopefully take the director who provides such sensitive advice out of the political melee and give universities more confidence in them.
Michelle Donelan
If the right hon. Gentleman will allow me, I will get to that point later; he may intervene again if he is not satisfied with the response.
Amendment 18 would require the Office for Students, when considering a complaint, to be mindful of the right of students to feel safe on campus, and of other legal duties such as those under the Equality Act 2010 and the Prevent duty. But the duty in the Bill to take “reasonably practicable” steps to secure freedom of speech and academic freedom will allow for relevant considerations to be taken into account. In particular, it will allow for other legal duties, such as those under the Equality Act and the Prevent duty, to be considered.
“Reasonably practicable” is a commonly understood term used across the statute book. It means that the relevant body can take into account all the other legal duties on a case by case basis. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that. As for the Office for Students, it will be required to take into account all the relevant facts. It would not be appropriate to try to set out all the considerations that it should take into account, so the Government do not support the amendment.
New clause 4 concerns the appointment of the director for freedom of speech and academic freedom to the board of the Office for Students. It relates to the appointee giving a donation to a political party, and it would require the appointment to be made by an independent advisory panel. We have in this country a robust public appointments process that, rightly, does not bar people who are members of political parties from serving in such roles.
The Commissioner for Public Appointments sets out that every year numerous public appointments are made of individuals who declare political activity, and in many years more appointees have declared an affiliation to the Labour party than to the Conservative party. This rule is such that, if applied generally, it would have prevented individuals such as Alan Milburn, Baroness Falkner and John Cope from serving.
On who will appoint the director, this will be carried out in the same way that the other members of the Office for Students board are appointed under the Higher Education and Research Act 2017—by the Secretary of State—and this will of course be done in accordance with the public appointments process. It would not be consistent to treat the director under this Bill differently. The Government therefore do not support this amendment.
John McDonnell
As this now goes to the other place, could I just ask the Minister to think again on that particular issue? This is an incredibly contentious area, and it requires someone who is above any form of suspicion of party political linkages. More importantly, it requires someone who has the confidence of an independent panel, but also, I believe, of one of our Select Committees. I urge her to think again, at least about the appointments process and the engagement of a confirmatory vote by a Select Committee on this critically important post, which I think is so important that the legislation will stand or fall on this appointment.
Michelle Donelan
I am a little taken aback by the comments of the right hon. Member, who refers to the relationship between political parties as suspicious—quite something given that we are all related to political parties. The Government will not be thinking again on that one.
New clause 5 would introduce a sunset clause, meaning that unless a report is made to Parliament and regulations are made, the legislation would expire three years after the date of enactment, and it would give Ministers the power to discontinue provisions in the Bill after one year. The fact that the Opposition have tabled this amendment demonstrates very clearly that, whatever they say, Labour Members do not support free speech. They have consistently opposed the need for this Bill despite the very clear evidence, and they now are seeking to dismantle it before it has even started. The Government wholeheartedly oppose this amendment, and we will never falter in our determination to safeguard free speech.
With the assurances I have given, I hope Members will not press their amendments to a vote, and I commend this Bill to the House.
Question put and agreed to.
New clause 2 accordingly read a Second time, and added to the Bill.
New Clause 4
Appointment of the Director for Freedom of Speech and Academic Freedom
“(1) A person may not be appointed as the Director for Freedom of Speech and Academic Freedom (‘Director’) if the person has at any time within the last three years made a donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.
(2) The person appointed as the Director may not whilst in office make any donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.
(3) The appointment for the Director shall be made by an independent advisory panel to be established by regulations made by the Secretary of State.
(4) The appointment of the Director for Freedom of Speech and Academic Freedom shall be subject to a confirmatory resolution of the relevant Select Committee of the House of Commons.
(5) A statutory instrument containing regulations under subsection (3) may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”—(Matt Western.)
This new clause would ensure that the Director of Freedom of Speech and Academic Freedom has not and cannot whilst in office donate to a political party and ensure they are only appointed subject to confirmation of an independent advisory panel, the Select Committee of the House of Commons and a resolution of each House of Parliament.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
Michelle Donelan
I beg to move, That the Bill be now read the Third time.
I would like to take the opportunity to acknowledge all who have contributed to the Bill’s passage. The nature of the problem and the intensity of those opposed to academic freedom has made even acknowledging the issue an incredibly brave act in many cases. I thank the many right hon. and hon. Members who have raised the issue and contributed to the discussion over the years. In particular, my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) and my hon. Friends the Members for Congleton (Fiona Bruce) and for Penistone and Stocksbridge (Miriam Cates) have played an important part in scrutinising and strengthening the Bill. I thank my right hon. Friends the Members for Hereford and South Herefordshire (Jesse Norman), for Harlow (Robert Halfon) and for Chingford and Woodford Green (Sir Iain Duncan Smith), my hon. Friend the Member for Rutland and Melton (Alicia Kearns) and others for raising the important subject of international donations transparency. I also thank the research institutes and think-tanks who have shone a spotlight on the scale of the problem, such as Policy Exchange, Legatum and the policy institute at King’s College London. Together with the support of the Russell Group, Universities UK and other sector organisations, we on the Government side have been able not only to understand the scale of the problem but to shape the solution.
I was personally moved by much of the oral evidence given in the Public Bill Committee, so I struggle to understand how the Opposition sat there, heard that and yet still failed to back this robust action. Individual academics, such as Professor Kathleen Stock, Professor Nigel Biggar and Dr Arif Ahmed, have also played a fundamental role, raising awareness of the problem and advocating for change, sometimes at significant cost to themselves.
Members from across the House made valuable contributions during the debate and during the passage of the Bill. Some, in fact, highlighted areas of good practice in our universities. Despite pressure to limit free speech, in April Reading University vice-chancellor Robert Van de Noort published a strong, principled defence of academic freedom and freedom of speech that echoed many of the issues the Bill intends to address. The University of Cambridge rightly rejected proposed guidelines that all opinions must conform to the requirement of being “respectful”. Frankly, that would have been absurd.
However, that type of good practice is not always representative of the sector. As just one example, the high rates of self-censorship that numerous surveys and studies have documented show that the problem is widespread. The very nature of self-censorship means that the actual rates are likely to be much higher than reported. Students arriving at university today join an environment where one in four of their peers believe physical violence is justified to shut down views they deem to be hateful. We see that some are too ready to levy the charge of “hateful” at any view they disagree with. Staff are teaching at universities at a time when 200 of their colleagues recently reported receiving death threats and abuse with no support from their universities.
The UK has become the only country in the top tier of academically free countries to be significantly downgraded by the Academic Freedom Index. We are now ranked 63rd in the world. This is at a time when a university professor expressed lawful opinions and ended up needing police protection to visit a university campus. That is the culture that has been embedded in too many of our universities. It is not about lawful, peaceful protest, which of course should be celebrated; it is about a culture in which a small number of students and academics believe they have the right to act with impunity to harass, intimidate and threaten those whose views they disagree with until they are silenced and driven out. Again and again we have seen that occurring, while university authorities stand by and do nothing. No individual should have to fear for their personal safety, or rely on the good will of their colleagues to go about their job safely.
We will not let that continue, so we are taking action and delivering on our manifesto commitment, unlike the Opposition who continue to bury their heads in the sand. Madam Deputy Speaker, indulge me for a moment. Let me remind Opposition Members of some of the comments they have made during the passage of the Bill. One said there was:
“no evidence…of a free speech crisis”. —[Official Report, 12 July 2021; Vol. 699, c. 114.]
Others said it was
“tackling a problem that does not really exist.”—[Official Report, 12 July 2021; Vol. 699, c. 106.]
and that the legislation is “not necessary” and “manufacturing a problem”. Even the shadow higher education Minister called this a “virtually non-existent problem”. But I fail to believe that the Opposition do not recognise the wealth of evidence that they, too, have heard and seen. It is time that they were honest: they are simply anti-free speech.
This Government will always stand up for free speech, which is why our Bill confirms that it is not acceptable for students, staff or visiting speakers to fear repercussions for exercising their right to lawful freedom of speech and academic freedom. The Bill will also ensure that individuals have routes to redress if their rights are not secured due to breaches of the duties placed on higher education providers and student unions. Under the existing legislative framework, those clear routes of redress do not exist. They are essential to ensure that freedom of speech and academic freedom are protected to the fullest extent. The Bill is about changing the wider culture on university campuses so that everyone has an equal right to be heard and peacefully challenged. That should be done with tolerance of different opinions and in a constructive way. It does not grant any protection to unlawful speech.
Whether some Members realise it or not, change is needed. As we have seen historically on issues such as gender equality, race discrimination and human rights, such cultural change occurs more readily when backed up by appropriate legislation. At present, we have a duty without proper means of enforcement. The Bill is therefore a vital piece of legislation that will lead to the cultural change necessary to tackle the issue at the core. I therefore challenge the Opposition to show the world of higher education that we value freedom of expression the same as we value it here in this place, and to be on the right side of history—the side that stands for free expression, free speech and academic freedom. I commend the Bill to the House.
Matt Western
I extend my thanks to all those involved in the passage of the Bill in Committee and on Second Reading, as well as this evening. I join the Minister in thanking Government Members, as much as those on the Labour Benches. I thank my hon. Friend the Member for Kingston upon Hull West and Hessle (Emma Hardy), my right hon. Friend the Member for Hayes and Harlington (John McDonnell), my hon. Friend the Member for Brighton, Kemptown (Lloyd Russell-Moyle), my right hon. Friend the Member for North Durham (Mr Jones), my hon. Friend the Member for Denton and Reddish (Andrew Gwynne) and others. They made constructive comments and contributions to the process in Committee, and I place on record my thanks to them.
As we come to the end of the Commons stages of the Bill, just under a mammoth 400 days since it was first introduced, it is clear that it has been something of a distraction from what really matters to the sector and students. We have just heard, in the urgent question on the Government’s failure to address the dreadful GDP figures, that the UK economy is in a dire position. We are in the midst of the worst cost of living crisis since the 1970s. Three out of every four students are currently worried about managing financially. One in four have less than £50 a month to live on after rent and bills, and 5% of students are using food banks to get by. On the doorstep in Wakefield, when I was talking about some of these issues, someone said to me, “What on earth has that got to do with the price of fish?” She is right. What has this got to do with the price of fish? Put simply, students are not exceptions to the rules of this crisis. The challenges faced by students are a reflection of what is going on in wider society, for sure. The Minister has responded by uplifting student maintenance by just 2.3% this year—2.3%—against a backdrop of an inflation rate pushing 10%, while at the same time ignoring any of the reforms to student maintenance proposed by the Augar review.
Meanwhile, the Government have imposed this piece of unnecessary legislation on the House, expending 30 hours of parliamentary time on this Bill, a Bill primarily searching for a problem—and I will come on to the point of what we would do. Seemingly, despite finding little time to tackle the cost of living crisis, the Government can find time to protect antisemites and people who, in the Ministers’ own words, are aiming to cause deep hurt and offence. Never mind that the Joint Committee on Human Rights’ report into freedom of speech at university in 2018 found there was
“no major crisis of free speech on campus”,
or that research conducted by the Office for Students found that out of over 62,000 requests by students for external speaker events in 2017-2018, only 0.01% were rejected by student unions or university authorities. The Minister seems determined to pursue divisive legislation to stoke culture wars for her own political agenda. Last week, when she addressed the Higher Education Policy Institute conference, she could not substantiate her claims in support of the Bill.
The Government like to present themselves as defenders of freedom of speech, but their actions tell us differently, including their plans to arrest noisy protesters and limit others, to restrict the right to vote through voter ID and their outright attacks on the BBC and plans to privatise Channel 4. The Government are interested in freedom of speech only if that speech is framed in their own image. The Minister says that Labour’s position is absurd. Free speech on our campus but no right to free speech on our streets is utterly absurd. I need not remind the House that Labour has always championed free speech. Indeed, it was a Labour Government who introduced the law guaranteeing freedom of expression.
The issue here is all about evidence, and the point I have just made about the Minister. That is why Labour has deep reservations about the unintended consequences of the Bill. Its top-down, one-size-fits-all approach demonstrates the weakness at the heart of the Government and their misplaced lack of trust in the academic community. When that happens,
“Governments lose faith in academics to protect freedom of speech and step in with legislation. It is what happened in 1986 and it is what is happening again”.
Not my words, but those of one of the Minister’s esteemed predecessors.
Conservative Members cry, “Well, what is Labour’s plan?” That is easy. We believe in adopting best practice off the shelf whenever we can. Our universities and the academics and teaching staff who work within them are world leading. It is no surprise, therefore, that there is a vast array of really good practice out there if the Minister only chose to look—the Manchester guidelines, the Chicago principles or Robert French’s independent review of freedom of speech in Australian higher education, to name but three. Countries around the world have similar issues, but the point is how they go about addressing them. If the Minister were really interested in promoting and protecting freedom of speech and academic freedom, she would encourage this approach across the sector. Such approaches would go a long way to fostering the healthy culture of debate on campus we all want to see. Sometimes institutions and student unions will get it wrong. That is the nature of debates on the parameters of free speech, but it is a small price worth paying for a collective, more consensual approach to protecting freedom of speech on campus.
The Bill will expose universities and student unions to potentially lengthy civil proceedings brought by anti-vaxxers, holocaust deniers or hate preachers. Debates about freedom of speech are complex enough without Ministers creating a legal route open to abuse by vexatious claimants—suppression of debate through what is termed and recognised as lawfare. Despite the Minister repeatedly claiming that this new statutory tort would be an important backstop, there is no reference to that in the Bill. She has failed to put in place any mechanisms to prevent providers, including the 165 further education colleges that fall under the scope of the Bill or student unions, from falling victim to costly litigation. Today the Institute for Fiscal Studies has warned that Government spending on adult education and apprenticeships in England will be 25% lower in 2025 than in 2010. I need not remind the House of how costly lawsuits are. Every 1p spent by institutions defending such claims in the court will be 1p less spent on the student experience, on hardship funds, on new library facilities and on research and development. Those potential legal costs are not even included in the £50 million the Minister’s Department estimates the Bill will cost the sector over the next 10 years.
The public are desperate for the Government to focus on the immediate and very real priorities—the cost of living crisis, energy bills doubling in a year, 40% of households in energy poverty, demand on food banks rocketing and the worst performing economy in the G20 bar one. That country, Russia, is burdened by massive international sanctions. The Government want to spend precious time on pursuing this blatantly ideological legislation that will do nothing for the great British public. It is self-serving, and another demonstration of just how out of touch the Government are. Change should come from the ground up rather than the clunking fist of an embittered Government.
In terms of legislation, the Bill is about as big a Big Dog’s breakfast as it is possible to get. As it progresses to the other place, I very much look forward to many peers taking note of some of our suggestions for improvement. Other than Lord Wharton of Yarm, I believe there will be widespread opposition to the Bill from all parties and indeed the Cross-Bench peers. Given that we have had almost 100 amendments in total to this Bill, and it is only 19 pages long, they will have a lot of areas to choose from. Before it returns, I very much hope that the Government will have started to treat universities as a public good rather than a political battlefield.
Sir John Hayes
I will speak very briefly, making only three points in two minutes.
First, it is disappointing that the Labour party is opposing the Bill. By its nature, it is a party whose Members are elected to a Parliament that has as its foundation the exchange of honestly held opinions. Even at this late stage, I feel that Labour Members might be persuaded to change their mind. I implore them to do so, because it is entirely specious—as the hon. Member for Warwick and Leamington (Matt Western), who is a thoughtful person, knows—to compare the cost of living with the price of freedom. The price of freedom is the capacity to disarm, to disturb, sometimes to make people feel uncomfortable and certainly to challenge the status quo. That is the nature of academic discourse, yet it is at risk.
Secondly, the evidence is clear. In Committee, Trevor Phillips said that
“in the last three to five years we have seen example after example of where university authorities have essentially abdicated their responsibility to protect their own academics and students.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 23, Q42.]
Professor Biggar said:
“My view is that the Bill would protect lawful free speech.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 24, Q44.]
He went on to say why that was necessary. Professor Ahmed said:
“With regard to self-censorship, my own experience has been that it has changed drastically over the last 10 years…I know that there are people who bite their tongues in the sense that they will not object to certain things that are pointless and stupid, simply because they are afraid of the consequences.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 15, Q26.]
The consequences for academics and students can be dire: they are isolated, they are persecuted and in some cases, as we have heard, they are even driven out of their job.
The Government have got this right, and the Opposition have got it badly wrong. As Members of this House know, I am not a person who thinks that a single party or a single side of the House has a monopoly on wisdom, but on this particular occasion all the wisdom lies with the Government Front Bench. I implore the hon. Member for Warwick and Leamington and other Opposition Members to change their mind, look to their conscience and defend freedom of speech, as I know the Minister is doing and the Bill does.
Jim Shannon
It is a pleasure to follow the right hon. Member for South Holland and The Deepings (Sir John Hayes). Unfortunately, I could not make a speech on Report because I was attending a meeting with the Foreign Secretary about the Northern Ireland protocol, but I want to contribute on Third Reading. I declare an interest as chair of the all-party group on international freedom of religion or belief.
The Bill is critical. I commend the Minister for how she has delivered it and for her speech on Report, which I was able to hear. The Government have delivered the very legislation that I, personally, wish to see. I believe that my constituents and those who write to me—my mailbag is very substantial—also wish to see it. The Government have done a good job today; I am absolutely in favour of the Bill.
I could give examples of Christian conferences not having their dates renewed at universities, or of young Christian unions being pigeonholed by activists into expressing an opinion based on their sincerely held belief, only for it to be cited as hate speech. That is ridiculous, and that is why the Government have introduced legislation, which I very much welcome, to address the matter. The Bill will make a difference and protect Christians and other religious groups. I never thought that we would be in a place where we needed to take these steps, but the fact is that we have to, and the Government have done so.
A minority of people in influential places have been gift-wrapped the ability to halt freedom of speech in our universities, which, instead of being a place of open thought and debate, are now closed to anything that is not of a certain agenda and persuasion. I thank the Minister and our Government for the steps that they have taken to bring the Bill to completion. The Government have ensured that there will be no loopholes that could be used by those who wish to exercise their freedom of speech but who cannot afford others the same very basic right, which the right hon. Member for South Holland and The Deepings referred to on Report and just now.
I am given to understand that reforming the Human Rights Act may have led to the more restrictive definition of academic freedom in the original wording of the Bill, which included a caveat that academic freedom exists only within an academic’s field of expertise. This was expressed to me in a briefing by Universities UK. UUK has subsequently welcomed amendments 1, 2 and 16, which remove the express limitation that academic freedom covers only matters within an academic’s field of expertise, and I agree: a teacher of mathematics should still be able to express his belief about biology in a considerate and kind manner, should the need arise. UUK understands that the Government intend to provide guidance for universities in respect of the new duties in the Bill. That is particularly significant given that duties can often appear to overlap or sit in tension with one another. An example is the Prevent duty, which has legal protection. The Government have enshrined in the Bill protection for the people whom I represent, and, indeed, for people throughout this great United Kingdom of Great Britain and Northern Ireland.
I support the Bill in the hope that we will have freedom of speech, freedom of religion or belief and the freedom to choose no belief, if that is what people want, and that that will be enshrined in our universities rather than this seemingly insidious desire by a select few to shut down debate and oppose anyone who cannot agree with their “enlightenment”. My goodness me, what a poor world it would be if everyone were like that! Jews deserve the right to practise their religion in so far as it does not harm others, as do Muslims, Sikhs and Buddhists. They deserve the right to express their beliefs—as they still do—in a way that does not harm anyone. This is about respect, and I am browned off with seeing so much disrespect for people.
We must also legislate, increasingly, to ensure that those who wish to speak of Christ and His teachings have the right to do so in the halls of their university student unions, and not just in their churches or chapels.
Question put and agreed to.
Bill accordingly read the Third time and passed.
Higher Education (Freedom of Speech) Bill
Tuesday 14th June 2022
(2 years, 6 months ago)
Lords ChamberRead Full debate Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 13 June 2022 - large print - (13 Jun 2022)
Higher Education (Freedom of Speech) Bill
Tuesday 28th June 2022
(2 years, 5 months ago)
Lords ChamberRead Full debate Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 13 June 2022 - large print - (13 Jun 2022)
Earl Howe (Con)
My Lords,
“If liberty means anything at all it means the right to tell people what they do not want to hear.”
George Orwell’s words from 1945 remain just as apposite today. I hope and believe that we are all in agreement that freedom of speech—the right to voice one’s opinion without fear of repercussion—is vital to the proper functioning of a democratic society. This principle is surely no less important in a university setting. Free speech is the lifeblood of a university, allowing students and teachers to explore a spectrum of views, engage in robust debate and pursue their quest for knowledge.
The phrase “world class” is sometimes overused, but our higher education is world class, and it would not be wrong to equate much of its success to the value we place on free speech in this country. You need only look to some of our most influential historical figures to understand how free speech can influence the course of history. Let us not forget that the views of trailblazers such as Emmeline Pankhurst and Mary Wollstonecraft were first dismissed and ridiculed, but their willingness to stand up and argue for what they believed in ultimately secured women the right to vote.
Both students and academics arrive at our universities expecting to be challenged. Yet, we know that fear of censure is increasing and this is having a chilling effect on discourse and debate. There is a growing body of evidence to bear this out: the proportion of students who believe that universities are becoming less tolerant of a wide range of viewpoints has risen to 38%; this figure stood at 24% in 2016. Here, I thank my noble friend Lord Johnson who, as Universities Minister, was one of the first to raise concerns on this important matter, including in his landmark speech at the Limmud conference in December 2017.
I firmly believe that we must address these issues and that the Bill before us is the best way to do so. By way of an example—which happens to be the freshest in my mind—the experience of my right honourable friend the Secretary of State for Education at the University of Warwick highlights that, even if we do not agree with views expressed by others, it does not mean that we have the right to silence them. A student firmly interrogated the Secretary of State’s statement on trans rights. Their views differed greatly but, as the Secretary of State said, the student’s
“right to free speech is vital too”.
Areas of disagreement do not always have to be met with hostility; there is scope to agreeably disagree. I am looking forward to hearing the views of noble Lords during today’s debate, and I thank those who have come to contribute to it.
The Bill will protect lawful freedom of speech and academic freedom on campus. The measures will strengthen existing legislation and address gaps in existing law. As I shall explain, these are very much active measures, not just a means to address a problem once a breach of the duties has taken place. New duties will be placed on higher education providers and constituent colleges to take “reasonably practicable” steps to secure freedom of speech within the law for staff, members, students and visiting speakers. They will be duty bound to pay particular attention to the importance of free speech when taking these steps. Importantly, these duties also, for the first time, clearly extend to “academic freedom”.
In a new measure, the Bill will require providers and constituent colleges to promote the importance of freedom of speech and academic freedom. The Office for Students will be bound by a similar duty. Furthermore, higher education providers and their constituent colleges must develop and publish a code of practice, which must include an overarching statement of the values and procedures they will uphold, and which they must bring to the attention of their students at least once a year.
Student unions are at the heart of many students’ university experience; they offer a distinct space for students to come together and engage in areas particularly close to their heart. This legislation, therefore, contains duties that apply specifically to student unions at approved fee cap providers, which is the majority of registered higher education providers. Like higher education providers and constituent colleges, under this legislation they must take steps to secure lawful freedom of speech. Similarly, they must publish their own code of practice.
At present, there are no effective means of enforcing the current law if higher education providers are in breach of it. This may explain some individuals’ hesitancy to express their views. To address this, the Bill creates a new statutory tort for breach of specified freedom of speech duties by providers, constituent colleges and student unions. This will enable individuals to seek legal redress for the loss they have suffered as a result of a breach.
The higher education sector will play a leading role in delivering the ambitions of this legislation, but the regulator also has an important part to play. The Bill gives new powers to the Office for Students, which will identify best practice and provide guidance on how to secure and promote free speech. The Office for Students will be required to impose mandatory registration conditions on providers relating to freedom of speech and academic freedom, as well as monitoring the compliance of student unions with their freedom of speech duties. As with the lack of an enforcement mechanism, there is currently no specific route for all those who might be affected to lodge complaints relating to freedom of speech. The Bill creates a requirement for the Office for Students to provide a complaints scheme that will provide a right of redress for students, members, staff and visiting speakers. This scheme will be overseen by the Director for Freedom of Speech and Academic Freedom, a new position on the Office for Students board. These measures will enhance the strengthened freedom of speech duties and encourage compliance.
On Report in the other place, my colleagues introduced several minor and clarificatory amendments. Two substantial amendments were also tabled. The first creates a duty for providers, constituent colleges and student unions not to pass on security costs associated with free speech events to the organisers, unless there are exceptional circumstances. The second was an amendment on “overseas funding”: this creates a duty for the Office for Students to monitor overseas funding received by higher education providers, their constituent institutions and student unions. This will enable them to assess the extent to which the funding presents a risk to freedom of speech and academic freedom.
I finish by emphasising that the Bill is not about allowing unlawful speech. The right to freedom of speech is not an absolute right and it does not include the right to harass others or incite them to violence or terrorism. This is definitely not a licence to break the law. The Bill is about encouraging varied and thoughtful debate, so that future generations develop the ability to think critically, challenge extreme narratives and put forward new—and sometimes controversial—ideas. I firmly believe that these are essential skills in a modern, forward-facing society. I look forward to the debate ahead of us today and beg to move.
Baroness Thornton (Lab)
My Lords, I thank all noble Lords who will speak in today’s debate and all the organisations and the Library for their excellent briefing on the Bill.
I also thank the Minister for presenting the Bill with his usual clarity and elegance, expressing many aspirations that many of us would agree with about free speech. Having worked with the noble Earl for many years, both as a Minister and in opposition, revising and improving many pieces of legislation, I have come to admire his intellectual acumen and political nous. I fear that he will have to bring both to bear in great measure to justify and succeed in getting what is regarded by many as a shoddy piece of legislation—at best, unnecessary and, at worst, divisive—through your Lordships’ House in its present form.
Labour, unlike the Conservatives, over many years, has always championed free speech. It was a Labour Government who introduced a law guaranteeing freedom of expression. It seems to us on these Benches that, as higher education and our students move out of the difficult and sometimes traumatic time that Covid brought, the Government should be addressing the immediate issues of rent, getting a job and the rise of mental health conditions among our young people. Three out of every four students are currently worried about managing financially, one in four has less than £50 a month to live on after rent and bills, and 5% of students are using food banks to get by. Surely these matters are the priority, rather than focusing on a row largely manufactured in Whitehall based, at best, on flimsy evidence. A review of 10,000 events revealed that only six were cancelled and four of those because of faulty paperwork.
The Commons Minister, Michelle Donelan was asked what evidence lies behind her statements on ConservativeHome that there is
“a cluster of institutions that are in the grip of a close-minded, intolerant ideology—and at the centre of this cluster lie our universities.”
She said that she believed it to be true. This seems a flimsy base for legislation from a Secretary of State who says that he believes in an evidence-based approach. Can the noble Earl please tell the House to which “institutions” his honourable friend was referring? As my honourable friend Kate Green MP said at Second Reading over a year ago,
“it is an evidence-free zone when it comes to underpinning the concerns that he says it is addressing.”—[Official Report, Commons, 12/7/21; col. 53.]
The lack of an evidence base is one challenge the noble Earl will have to face as the Bill progresses through your Lordships’ House, but there are others. There is an understandable concern that the Bill may undermine existing protections against discrimination. That it introduces a new mechanism that some believe may allow hate-filled individuals to sue a university if they feel that their opinion has not been adequately heard may allow extremists, racists and Holocaust deniers to have a voice and a much-craved platform on our campuses. We will need to test these things during the passage of the Bill.
Additionally, we need to ask how the resources to fight those challenges will be found. We will test the effectiveness of the new clauses added by the Government. From these Benches, we will seek to amend the Bill to require an independent appointments process for, and prevent party-political donations from, the new, to-be-appointed director of free speech. We will seek to broaden the definition of academic freedom to include, for example, criticism of institutions, conducting research and joining a union. We will seek to add a sunset clause, so the legislation expires after three years unless an extension is approved through an affirmative SI. We will seek to require the Office for Students to consider competing freedoms when investigating free speech complaints and seek to prohibit the use of non- disclosure agreements by universities in relation to sexual harassment.
I want to raise with the noble Earl the appointment of the director of free speech. This job was advertised on 13 June or thereabouts, which is, of course, the date that the Bill completed its passage through the Commons but had yet to reach your Lordships’ House. The closing date for applications is 13 July—so be quick if you want to apply for this almost £100,000-a-year job. Can the noble Earl address the question of pre-emption? When will the appointment be made if the closing date is 13 July? Will it before the position has been agreed by Parliament? What parliamentary scrutiny will the appointment receive?
Looking at the job description—which I recommend noble Lords to read—the position seems to require no legal background. I hold no brief to create work for lawyers, but surely if we are to have a director of free speech, a person tasked with the job of settling contentious cases, it must be in all our interests for that person to have a broad understanding of the sector, the legal framework around free speech to which I have referred and the sector’s regulatory framework, but these elements are not essential in the job description.
In conclusion, the issue here is evidence, and that is why these Benches have deep reservations about the unintended consequences of this Bill. Its top-down, one-size-fits-all approach demonstrates the weakness at the heart of the Government and their misplaced lack of trust in our academic community. I have great hope that the many noble and learned Lords and the phalanx of chancellors, vice-chancellors and heads of colleges who inhabit your Lordships’ House will cast their eyes on the Bill and between us we might knock it into some sensible shape. At the least we can do no harm, and if we are very successful, we may enhance free speech in higher education. I look forward to the debates to come and the next stage of the Bill.
Lord Wallace of Saltaire (LD)
My Lords, this Bill is unnecessary and un-Conservative. It addresses a problem that is far less severe than right-wing think tanks have claimed, and for which the Government’s White Paper admitted that there is very little supporting evidence. Ministers who preach deregulation and shrinking of the role of government are introducing a Bill to impose burdensome and costly new regulations on British universities—the sort of thing that authoritarian Governments in Hungary and Russia impose to limit critical debate and cripple civil society. This is not what a Government who claim to be leading the democratic world against authoritarian regimes should be doing.
It is also an orphan Bill. Those who pushed for it in government—Munira Mirza, the champion of culture wars in No. 10, and Gavin Williamson and his special advisers in the DfE—have now left. Perhaps for that reason, the Bill loitered in the Commons through the last Session, giving hope to some of us that reasonable voices in government had thought it wise to let it die. But here it is, staggering on because wiser counsels within the Conservative Party have not prevailed, pushed onwards by the American and Australian-trained campaigners in No. 10 who think that fighting culture wars appeals to the Conservative base.
Our Prime Minister has been fond of the boast that the UK is “a soft power superpower”. The Minister will recall that the integrated review of foreign and security policy devoted an entire chapter to the importance of soft power. It listed as its most valued institutional components the BBC, the British Council, the quality and financial scale of our overseas development programme, the reputation of our universities, and the strength of our cultural sector. Since then, the Government have cut the aid budget, sidelined the British Council and repeatedly attacked and financially weakened the BBC. Now this Bill threatens to weaken the global standing and reputation of our universities by extending government oversight of academic debate, appointments and promotions.
There is a problem of toleration of dissent by the current student generation in our universities. The Higher Education Policy Institute has just published a survey which indicates that students have become more protective of what they see as vulnerable minorities, less willing to accept that freedom of speech necessarily includes the right to offend and less willing to tolerate university teachers whose views clash sharply with their own. We have seen a small but painful number of instances in which universities have failed to defend their staff in such circumstances, most sharply the University of Sussex in the case of Professor Stock.
University leadership needs to underline the importance of tolerance of different views among staff and students, but in a free society that role should be played by university leaders and not be imposed by government. In any case, how severe and widespread a problem is this for the over 100 universities? Is the challenge we face worse than in in previous cycles of student activism, which universities have come through without requiring heavy-handed government intervention?
Gavin Williamson in his preface to last year’s White Paper specifically deplored attempts to block Ministers from speaking at and ambassadors from visiting universities. The very first lecture I gave as a newly appointed lecturer at Manchester University in January 1968 was disrupted by a protest at the suspension of a student for assaulting an Education Minister the night before. I went to a ceremony at King’s College London some weeks ago to unveil a portrait of one of the students who had disrupted my lecture, who has since become an adviser to Governments and a globally recognised academic.
Some noble Lords may be old enough to remember the Stop the Seventy Tour and the wider student campaign against apartheid South Africa. My wife can still remember the song she and others sang as they blocked the South African ambassador from speaking at Oxford University. I have just read a memoir of the Stop the Seventy Tour which confirms that at least two of its most activist members have since become Members of this House.
Last year, I spoke to a number of vice-chancellors about this Bill and the issues it raises. One retired VC reminded me that he had struggled to maintain order on his campus in the face of deliberately provocative speakers invited by the then chairman of his student Conservative Association, one John Bercow. A current vice-chancellor told me that the biggest problem of this sort he faces is keeping the peace between his Chinese and Hong Kong students.
There is nothing new about student protest or arguments about the limits of freedom of speech in universities—and I have been an academic for 40 or more years. The question is whether the imposition of a heavy external burden of intrusive regulation, with the introduction of a new tort that will transfer large sums of money from university funds to lawyers through litigation, is a proportionate response to the limited number of unacceptable instances we have seen, above all related to trans rights. I suggest that the proposals are disproportionate. This extension of state interference over autonomous institutions is authoritarian and not Conservative.
The Bill covers not only students and student unions but also staff, visiting speakers and the loosely defined “members” of higher education providers. I understand that, as a retired professor, I may count as a “member” of the LSE, with standing to sue or be sued under the Bill—I shall have to check with the director. The provision that permits discontented staff to sue if they consider
“the likelihood of their securing promotion or different jobs at the provider being reduced”
opens a huge can of worms. I declare an interest: I was once passed over for promotion at the department of government at Manchester on the grounds that I was “too interested in politics”.
The anti-intellectual right in the United States, with its claims that universities are hotbeds of liberalism actively discriminating against honest conservative thinkers, has close links with right-wing bodies in the UK. Policy Exchange in London has claimed on its website to have provided the foundations for the Bill, with almost all of its recommendations in two reports being accepted. I regret that the noble Lord, Lord Godson, is not here today to take credit for that achievement. He might also wish to tell us how much of the significant American funding for Policy Exchange has come from those right-wing foundations that have fuelled Trumpian Republicanism. Think tanks, like universities, should be transparent about their foreign funding.
I was struck when I read the Policy Exchange papers that they had almost as many references to American examples as British, including some from hard-right foundations. They included the claim that the staff of British universities are overwhelmingly left-wing: 80% apparently failed to vote Conservative or UKIP in the last two general elections. Given that over 20% of staff in most universities are not British citizens, and that a large proportion of that staff are scientists and medics and not particularly interested in politics, I find this statistic completely unbelievable.
I am concerned, however, about the undertow of anti-intellectual, anti-rational argument from right-wing critics about Britain’s alleged liberal elite and its allegedly malign hold on our cultural and educational institutions. The Times gave Douglas Murray two pages last Saturday to develop this theme, in which he stated that it’s now virtually impossible for a climate change sceptic to gain appointment as a university chancellor or museum director. If challenging the allegedly oppressive liberal cultural elite means insisting on climate change sceptics being appointed to senior academic positions regardless of their attitudes to evidence and reasoned debate, then our universities and their reputation are, indeed, at risk.
The shadow of Brexit hangs over this, of course, as over so many other aspects of British politics and public debate. The claims that appointments and promotions are biased against conservatives comes from leading members of Historians for Britain and a handful of political scientists. There is no evidence that I am aware of of structural bias against conservative academics; indeed, the founder of UKIP was a friend of mine and a colleague at the LSE. Opening appointment and promotion procedures to challenges over alleged political bias would be a serious incursion into the autonomy of our universities and a feast for lawyers in civil cases.
This is not the first time that structural bias in universities has been alleged. When Margaret Thatcher became Prime Minister, she was determined to abolish the Social Science Research Council. She believed, as a hard scientist, that there was no such thing as social science; that what was taught in universities was intrinsically socialist. She asked Lord Rothschild to report. He, thankfully, responded that careful social and economic research was essential to good government, and that public money should continue to underwrite it. She nevertheless insisted on removing the word “science” from what has since then been labelled the Economic and Social Research Council.
Allegations about left-wing bias in universities focus on social science and humanities, and above all on historians, but history faculties have always argued among themselves, often bitterly. The political balance among academic historians in Britain has been adversely affected by the choice too many of our self-declared patriotic historians have taken to emigrate and take better-paid posts in the United States. Different disciplines have different tendencies. One vice-chancellor told me that his university has a structurally left-wing sociology department and a structurally right-wing economics department: it goes, he said, with the disciplines. Those who want to use this Bill as a lever to promote more solidly conservative views in our higher education institutions should reflect that Britain’s most clearly conservative institution, after the University of Buckingham, is Christ Church College, Oxford: not the greatest example of toleration of dissent and diversity.
Others will touch on the tangle of vexatious lawsuits that this Bill will impose on universities. I briefly mention the comment of another vice-chancellor that it will be completely impossible, in the current heated political atmosphere, to find a candidate for the post of free speech champion who will be acceptable to all sides. Nor can we have confidence in Ofcom assuming this role, when the noble Lord, Lord Wharton, as chair, associated himself with Viktor Orbán and the authoritarian right at a recent Budapest conference. I speak with particular feeling on this as a former visiting professor at the Central European University and a member of its senate in Budapest in its early years, when Viktor Orbán still called himself a liberal.
At a time when trust in this Government is at an all-time low, when suspicion of No.10’s political appointments is high, when the contamination of the Conservative Party by American Republicanism should concern all decent Conservatives, we will have to do our best, as the revising Chamber, to mitigate the damage this Bill could do to the global reputation and standing of our universities.
Baroness D’Souza (CB)
My Lords, this is, I think, a well-meaning Bill, but I question its necessity. I imagine no one here doubts that free speech should be protected, given it is one of the mainstays of our democratic settlement. The issue is by what means, and this is crucial because laws once on the statute book can be reinterpreted and misinterpreted. Furthermore, laws alone do not guarantee a more gentle and humane society—for that, we need a change in culture and behaviour.
Although this is clearly not the best time to uphold American constitutional rights, I have often envied American first amendment rights. The UK has never had such a codified protection of freedom of speech and assembly, but this protection in the UK is implicit in many of the laws we do have, and has existed for centuries as an almost definitive feature of British intellectual discourse.
The US Supreme Court has, in many courageous landmark decisions over the last few decades, made a clear distinction between two kinds of speech: advocacy and incitement. It has set out two conditions that must be satisfied to justify a suspension of first amendment rights. First, the words must be directed to inciting or producing imminent lawless action. Secondly, the words must also be likely to incite or produce such action. In other words, there had to be, according to the Supreme Court, a clear temporal relationship between inciteful words and subsequent criminal action. At the same time, the court provided a three-part test for determining the legitimacy of any restrictions on free speech: any restriction must be provided by law; it must serve one of the legitimate purposes expressly set out in the text; and it must be necessary. Thus, the Supreme Court ruled that a black anti-war activist who threatened to shoot President Lyndon Johnson if he were to be forced to kill his black brothers was not intending to kill the President but to state his political opposition. Similarly, an opponent of the Vietnam war was justified in expressing sympathy and support for those unwilling to obey the military draft; the judge saying
“statements criticizing public policy and the implementation of it must be … protected”
to give freedom of expression the breathing space it needs.
It is an old and tested argument that the answer to hate or offensive words is more speech, to ensure that dissent remains within the political sphere and does not stray into criminal actions. This Bill recalls many issues that have given your Lordships’ House concern in the past: banning potentially noisy protests; tolerating dissent; hate speech; and now the freedom to express contentious views in the academic context.
There is an array of Bills that afford protection to free speech, as the very useful Library briefing has set out. These include the Education Act 1986 and the relatively recent establishment of the Office for Students, which requires all publicly funded education bodies to comply with public interest governance principles. However, the Government argue that these protections are spread among a number of statutes and, despite the well-publicised events in very recent years of no-platforming and campaigns against individual academics, the Office for Students has been reluctant to exercise its regulatory authority.
The current framework allows judicial review of a decision made by any educational body, which, in turn, permits only discretionary remedies and no scope for damages. The Government’s rationale is to bring all these laws together under a single banner and to strengthen monitoring and action.
Despite the many safeguards in our political system, the worry is that this spread of free speech rules and regulations may well itself have a chilling effect on free speech, while at the same time failing to eradicate vicious attacks. The law will permit a platform for those opposed to, say, gender terminology, and it may even prosecute those who attempt no-platforming. But the culture of intolerance will continue in other outlets, perhaps with even greater vigour.
It is useful to ask how far laws change the prevailing culture. The anti-smoking laws have certainly very successfully banished smoking in public areas; compulsory seatbelts have drastically cut fatal accidents. Will this Bill enable the academic sector to remain safe from attacks by those who hold contrary views? Will it eliminate “cancel culture”? Not in a hurry, I do not think. The self-righteous anti-lobby, or “woke culture”, is well entrenched in our social media and in actions against those who do not share its views. It requires rather a lot of courage for an individual, even though backed up by legislation, to face these kinds of onslaughts. The context of protest has led to self-censorship, possibly one of the most insidious kinds of censorship. Many academics would admit to modifying views and words in order to avoid attacks, and this is not conducive to intellectual exchange or opportunities to bring new ideas into the public arena. Darwin had a really tough time in the 19th century and JK Rowling is having a tough time today.
Then there is the question of necessity. I am informed by one of my grandsons that the Oxford Union has only ever cancelled three debates, none due to protest. Are the instances of interference in academic freedom numerous enough to justify the increase in monitoring and potential criminal charges in the Bill? Are the bodies mandated to bring formal complaints and action sufficiently distanced from the Government of the day? Will potential criminal sanctions contribute to the free intellectual discourse we all wish to see flourish? There are other loopholes in the legislation that could see the regulations abused and have the opposite effect with unintended consequences. Will this legislation have the desired effect in the absence of other legislation to limit online harms, and will it eliminate cancel culture?
Can a law adequately define contentious speech and views separately from the context in which they take place? Freedom of expression and its regulation depend on context; students at educational institutions are especially in need of protection because they are usually a captive audience addressed by teachers regarded as authoritative. The conundrum is that precisely because of these factors, students may also need to be protected from language that borders on incitement; for example, pro-Nazi or extreme religious views. The task of distinguishing between offensive talk and a call to action might be a very delicate one. So my inclination is towards non-interference by the state, and this Bill will need careful scrutiny to avoid undue regulation of what is a fundamental right.
The Lord Bishop of Coventry
My Lords, intense competition for students, jostling for promotion among lecturers, vigorous, often intense and sometimes rancorous debate, with dashes of sharp practice and occasional mob violence—not a preview of some future Office for Students report but a snapshot of the early academic career of Augustine of Hippo. One of his first publications was advice to lecturers and, significantly for this debate, he later asserted that “By force we can make no one believe.” I will make some general points about the Bill and then raise three more specific issues.
Timothy Garton Ash speaks of three “vetoes” that silence the ability of people to express themselves: shouting them down, the “heckler’s veto”; declaring what they say to be offensive, the “offensive veto”; and, in extreme cases, threatening to kill people, the “assassin’s veto”.
Sadly, it seems that we have seen each of these techniques in action within higher education, as some of the evidence submitted to the Bill Committee demonstrated. It may quite reasonably be argued that such incidents are very rare, and that existing legislation already provides sufficient means of tackling such threats to freedom of speech, and to academic freedom, or that such things have always occurred, but I am not so sure that all is well. It is also true, as the survey for the Higher Education Policy Institute found, as we have already heard, that students are increasingly prioritising safety, especially for minorities or vulnerable groups, over free speech. There seems to be a generational difference in what is regarded as legitimate free speech—free speech within the law.
Yet there is also evidence that a significant proportion of students report self-censoring their own views and convictions and are reluctant to voice them in public. Similarly, among some academic staff there was a reluctance to imperil one’s career, possible promotion, publication or application for research funding by expressing views that were perceived to lie outside the overall culture of the institution or department. Those willing to take a different line appear to be senior staff, who either did not seek promotion or a new role or who had already established their reputation.
Freedom of speech and, by extension, the right to challenge, provoke, disturb, upset and sometimes to offend, are matters which are worth protecting in law. But these imperatives derive their true value from how they sustain the fundamental purposes of higher education: seeking truth and developing wisdom. They are not ends in themselves, but the means by which we pursue the truth, which is to our common benefit. Christian faith is rooted in the person who testified to truth in the tribunals of power and who promised the means to discern truth—the spirit of truth so movingly invoked at Lord Judd’s thanksgiving service earlier today. This is a vision of open truth-seeking which the Church has, at its worst, sought to stifle in society, but at its best, has helped to embed in university life.
Truth will set you free. By definition, we are all invited to share in this liberative function, to seek the truth as a basis for our common life. Therefore, although we cannot legislate for civility, my hope is that the letter of this proposed law, which is to protect freedom of speech, might make room for the spirit of the law, which is to seek truth without diminishing or dehumanising others.
Indeed, this Bill alone will not accomplish its objectives or guard against potential harms through purely statutory or regulatory means. Alison Scott-Baumann’s work on free speech provides some deep wisdom on nurturing communities of inquiry through an “etiquette of argument”, as she calls it—a way of communicating over divisive issues without causing harm. We are having a go at developing similar principles of conversation in the Church of England at the moment, with some success. At the core of these principles is a fundamental understanding that the truth that we seek is written into our human dignity; therefore, one cannot be compromised without the other.
I turn to some points of detail. The House of Lords Library highlights continued concerns about the potential confusion between the responsibilities of individual institutions, the Office for Students and its new director of freedom of speech and academic freedom, and the Office of the Independent Adjudicator. While new Schedule 6A provides some helpful clarification, I would be grateful for further assurances from the Minister about the interaction between these various, potentially overlapping bodies.
I share concerns already expressed about the new statutory tort. While the Office for Students will be able to dismiss unmeritorious, vexatious and frivolous claims, there remains a real concern that this provision will lead to increased litigation, including through the small claims court, which universities will inevitably need to defend, incurring expense and time, even if the case is dismissed, as I understand it.
Finally, new Sections 3 and 4 in new Part A1 may be read as posing problems for the provision of premises and facilities that meet the religious and spiritual needs of a range of staff and students—a concern also raised in the written submission of the Free Church Federal Council of England and Wales. I am grateful for the assurances given in yesterday’s briefing that there is no intention to compromise dedicated faith premises. Nevertheless, I would welcome a discussion with the Minister, as requested by the Second Church Estates Commissioner in his letter to Minister for Higher and Further Education, to resolve the matter fully.
Augustine was of course right: “By force we can make no one believe”. But sometimes we need legitimately to use the force of law to restrain actions that adversely affect the rights and dignities of others and to protect the rights we have for free speech and freedom of expression. So, although the Bill needs clarification on a number of matters, it is a measure whose intentions I support. I hope to see how the Bill can be better shaped to serve those intentions.
Lord Willetts (Con)
My Lords, I begin by declaring my interest as a visiting professor at King’s College London—about which we have already heard—and the chancellor of the University of Leicester.
The Minister began his excellent speech at the starting point that I am sure all of us on all sides of this House share: the importance of university as a particular place where freedom of speech is not just practised but learned and passed on to the next generation, who may learn how to disagree better than they managed earlier in their educational careers. So, universities do matter. They are places which should offer protection from social media storms, cancel culture and—dare we say it?—political pressure. But they have not always been able to do this.
I found the most illuminating investigation of what can go wrong in our universities in the independent review of what happened at the University of Essex produced by Akua Reindorf. The review identified that, in a specific instance, the university had essentially attached far more weight to the equality duty than to the promotion of freedom of speech, which was exacerbated by a misunderstanding of the protected characteristics under the equality duty in the very sensitive area of gender reassignment. Things can go wrong; we recognise that. However, I hope that the Minister will be able to answer some real concerns of substance about this proposed legislation.
First, how is it going to work? I remember a previous round of concern on this issue which led to the 1986 Act, and we already have the Office of the Independent Adjudicator and some role for the OfS. Now, this legislation proposes two very significant extensions of powers—first, for the Office for Students, with a very significant new regulatory responsibility. In addition, we have this statutory tort provision, which could well mean that there will be vexatious, difficult and complex legal proceedings. Can the Minister explain why, faced with what is often a policy choice between going down the regulatory route or the legal protection route, both are to be applied in this legislation, and why he thinks both are necessary?
Secondly, will the Minister explain whether the aim is that all lawful free speech should be permitted in universities? That would be a very simple and clear starting point, which seems to be what Ministers are saying. However, on the very first day after the legislation was proposed, we already had an example of how tricky this is when the Minister said that it would enable Holocaust deniers to speak and was promptly slapped down by No. 10 saying that they should not. The Ministers in the Department for Education are currently pressing universities, for very understandable reasons, to endorse the wide-ranging IHRA definition of anti-Semitism. Everything covered in that definition is clearly objectionable, offensive and wrong. I am no lawyer, but it is not clear to me that everything which would be in breach of the IHRA definition of anti-Semitism is illegal. If it is not illegal, would it therefore be protected under this free speech legislation—in which case, why are Ministers currently pressing universities to take and act on a definition of anti-Semitism that seems potentially in conflict with the legislation they are now trying to pass?
Let me give a second example: the Prevent duty. As a Minister, I was very much aware of the pressure from the Home Office, which was interpreting the Prevent duty and definitely wanted universities not to invite speakers it thought would foment Islamic extremism, but it did not regard what they were going to do as necessarily illegal. The Home Office thought that universities had a responsibility that went beyond simply the protection of an absolute freedom of speech within the law. The Minister needs to explain exactly what he means when he says “lawful free speech”. If, as I suspect, in reality there will be statements that the Minister would expect not to be protected by the new director of free speech, he will understand as soon he has conceded that point why the appointment matters so much. We are passing legislation that will enable a regulator not to protect under free speech free speech which, nevertheless, in its most absolute form, would be allowed. No wonder there is considerable anxiety in this House about that power.
My third point to the Minister arises from my respect for the wide range of roles he carries out in this House. Yesterday, in this very Chamber, I think he was speaking about military personnel and defence issues. May I invite him, as he is clearly seen as an extremely senior member of the Lords ministerial team, to consider also taking responsibility for the online harms Bill when it comes to this House? I look forward to hearing him explain the importance of protecting not just children but adults from “harmful content” and “harmful communication”. When Ministers are pressed on why these provisions are necessary, we are told that it is because they will cause “serious distress”. This is snowflake culture. “Serious distress” is to be used in a separate piece of legislation going through Parliament in this Session. There will also be two sets of secondary legislation: one to implement this Bill, which will be about freedom of speech, and a separate body of secondary legislation to provide for the regulation of online harms. It is perfectly possible for a university to be fined for breaching this legislation because it would not permit something to be said which an online tech giant would be fined for transmitting. This is a ludicrous position to have got into. As both measures are going through Parliament at the moment, I very much hope that this Minister, above all, will ensure some consistency between them.
Baroness Royall of Blaisdon (Lab)
My Lords, it is a pleasure to follow the noble Lord. I look forward to the answer from the Minister about those complexities —my goodness. I begin by reminding the House of my interest in the register as principal of Somerville College, Oxford.
I start with a quotation often attributed to Voltaire: “I may not agree with what you have to say, but I will defend to the death your right to say it”. That, in essence, is the right to free speech. I consider that the free expression and exchange of views are fundamental to the academic, social and extracurricular experiences of being at university. Oxford University’s statement on freedom of speech says exactly that on the website and it is endorsed by the collegiate university as a whole.
I welcome the Government’s commitment to the protection of free and lawful speech and debate in higher education, but I do not believe that the Bill is either necessary or desirable. In seeking to fix something that is not truly broken, it could be seen as yet another spark to inflame the culture wars. As my noble friend said earlier, a recent review of 10,000 speaker events across universities found that only six had been cancelled, with four of those due to incorrect paperwork. I fear that the Bill will impose bureaucratic burdens on our precious universities, which are part of the questioning and accountability mechanisms our society needs and deserves.
Freedom of speech in universities already gets fulsome legal protection. The Human Rights Act requires universities to protect freedom of expression under Article 10 of the ECHR. Section 43 of the Education (No. 2) Act 1986 requires universities to
“take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”.
That is a great statement that seems to suffice.
I am concerned about politicisation of this issue. I suggest that such an important role as chair of the OfS requires the best person for the job, and I suggest that perhaps the person in office at the moment is popular with the Prime Minister. The responsibilities of the chair are immense, especially as the Bill provides for the Orwellian director of freedom of speech, who will have sweeping powers, act as judge, jury and executioner in free speech complaints and potentially monitor overseas funding of universities. The fact that the chair spoke via video link at the Conservative Political Action Conference in Budapest calls into question his judgment in relation to free speech. He said that he did not know that he was appearing on the same platform as a notorious far-right, anti-Semitic, racist journalist—a poor excuse. In his speech, he endorsed the recent victory of the Hungarian Prime Minister Viktor Orbán, whose Government have curbed freedom of expression and countless other human rights. The OfS said that the noble Lord, Lord Wharton, was not speaking in his capacity as chair of the OfS. Frankly, that is not good enough.
Today, I learned that Minister Donelan has written to all vice-chancellors suggesting that the Race Equality Charter is
“potentially … in tension with creating an environment that promotes and protects free speech”.
I am speechless. Can the Minister really defend such a suggestion? I am often asked whether wokeism is rife in our universities and specifically at Oxford. I suggest that it is not.
The Bill appears to require in statute that providers place greater relative importance on always securing free speech. It does not make any mention of the other legal duties that universities, student unions and constituent institutions need to abide by, despite the fact that these duties may potentially conflict with securing free speech in some cases, as the noble Lord suggested. Can the Minister say which duties have primacy?
The new statutory tort is far too open-ended. Safeguards against misuse are needed to ensure that this would be a genuine protection for staff, students and speakers. The Government make much of not involving judges in political questions, but I fear that this Bill could encourage frivolous litigation by provocateurs and draw the courts into very difficult political terrain.
The Bill’s current wording around the scope of the OfS’s free speech complaint scheme appears to allow for complainants to escalate their “free speech complaint” through multiple routes simultaneously. This is likely to lead to immense confusion. A situation of competing judgments could undermine faith in local disciplinary processes and in the procedures of the Office of the Independent Adjudicator and the OfS. At present, the OIA considers student complaints only once the local process has been completed. Does the Minister agree that a similar principle should apply in relation to the proposed framework for free speech-related complaints?
The Bill allows simultaneously for the imposition of sanctions by the OfS for breach of a registration condition and for the issuance of recommendations that higher education institutions, student unions and constituent institutions pay fines. Is it the intention that they could be hit by a number of simultaneous penalties? If so, that could be particularly damaging to student unions.
In relation to overseas reporting, the Bill imposes a general monitoring duty on the OfS that the regulator “must” request information pre-emptively from providers, regardless of whether it has reasonable grounds to suspect a risk to freedom of speech, and seemingly without limitation by the country and potentially exposed persons exemptions, despite the risk-based exemptions set out in subsections. Does the Minister agree that it would be sensible for the OfS to request information only where it has reasonable grounds to suspect a risk to freedom of speech and/or a provider being in breach of a freedom of speech duty owing to overseas funding, and that information in scope for any OfS reporting requests should be restricted to funding from certain countries or individuals?
This Bill will represent the first and only direct way in which the OfS regulates student unions. It spells out how the OfS will take enforcement action against student unions it considers to be, or to have been, in breach of the new free speech duties that will be incumbent upon them. Like colleagues from many other universities, I am concerned that the Bill provides only for a disproportionate punitive approach and fails to offer a gradated scheme of interventions short of a monetary penalty.
Benjamin Franklin said:
“Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech.”
It is my belief that our universities are already proud bastions of freedom of thought and freedom of speech.
Baroness Deech (CB)
My Lords, I declare interests, first as the first holder of the Office of the Independent Adjudicator for Higher Education, dealing with student complaints, and secondly as former principal of St Anne’s College, Oxford, where the only time I ever banned speech was a session that was planned on how to practise safe male sadomasochism. I have no regrets about having banned that.
What an indictment of our universities it is that we should need to return to this topic again. I have spoken about it many times in this House.
Academics have the right to say and debate controversial and provocative things subject only to the laws that prohibit and criminalise certain topics, of which there are surprisingly many, ranging from the prevention of terrorism to defamation and racial discrimination. Universities are not and never have been at liberty to limit freedom of speech beyond the law, which is why it is so shameful to see professors hounded out for, for example, their views on gender. My views in a nutshell are that it is a problem, but that this Bill is not the right way to tackle it.
Policy Exchange, on whose research the Bill is largely based, found that there was extensive political discrimination in universities, with remainers against leavers, hostile attitudes between left and right, gender-critical researchers and transgender activists, reflected in difficulties in publication and probably other promotions in the university. There is today huge cultural pressure to conform to the acceptable doctrines of the time. Dissenters feel they must keep quiet. The Higher Education Policy Institute survey this month found a distressingly large amount of agreement among students about banning things that cause offence to them and a need to feel comfortable, which is not what you go to university for.
Sadly, current controversies over free speech have tended to divide along strong lines of black and white. Each side believes that the other is wrong and therefore stupid and to be silenced. It is happening over transgender, and it happened over Brexit. The French revolutionaries, the Cultural Revolution, Nazism and fascism all blocked free speech on the ground that they and they alone possessed the moral truth. Outside of the universities too, there is very limited liberty to say things that do not conform with the prevailing trend, and the consequences can be cancellation, loss of job or even violence. Even here in the House of Lords there have been attempts to silence our individual opinions and words.
But this new Bill is not only superfluous and riddled with contradictions and ambiguities but is likely to make the situation worse if activists use the complaints system to be instituted in the OfS and even take to the courts. A student life is only three years, and taking to the courts in any subject, as we know, is likely to last long beyond their graduation and do them no good. The complaints system will be in addition to the long-established and—I would say—successful one run by the Office of the Independent Adjudicator for Higher Education, which I set up. I cannot see how the director of freedom of speech at the OfS cannot be but conflicted. Moreover, I cannot see the point of duplicating what is already available at the adjudication office. It is possible under the Bill that the OfS might deal with one side of a complaint, from a staff member, and the OIA will receive a complaint from a student about the same incident. There needs to be clear demarcation. The OfS will be able to offer a remedy only for the free speech aspect, while the OIA can offer broader remedial action.
Sadly, I have had significant experience of trying to help Jewish students as a patron of UK Lawyers for Israel. Those students have faced threats to their safety and even refusals of references when trying to assert their rights to free expression. The London colleges, notably LSE, SOAS, KCL and UCL, are often regarded as hostile environments for Jewish students and, right now, Goldsmiths has embarked on a study of anti-Semitism in its college. This new legislation must not undermine the existing protections, flimsy though they are, to stop anti-Jewish racism and Holocaust denial.
The Bill refers to freedom of speech within the law without giving a definition. One can easily imagine a Holocaust denier or a Hamas leader taking legal recourse for being denied a platform. Holocaust denial is not actually illegal, but it has been argued that the Equality Act and Prevent duties will ensure that it is not permitted on campus. Not only has this not been tested, we know that every year extremist Islamist speakers are allowed on campus preaching hate.
Do the universities not also have duties to prevent harassment and foster good relations under their public sector equality duty? Are they doing it? Will freedom of speech trump the other values, not expressed in straightforward law, that universities promote? There is no requirement in the Bill to consider competing freedoms. How does an authority decide between, on the one hand, Holocaust denial as an exercise of freedom of speech, and, on the other, the right of Jewish students not to be harassed and defamed? Will there still be a duty to prevent serious psychological injury? What about the freedom to speak against transgender issues? Will academic freedom triumph over demonstrably false assertions? What about a lecturer who wants to say that the US election was stolen from Trump or that climate change is a lie? The emphasis in the Bill might in future provide a cover for knowingly malicious and mendacious conduct.
Conspiracy theories put forward together with intimidation and vilification may be permissible and tolerable as political speech, but not as academic freedom, which they are not, or free speech, which has to be based on truth, not pseudoscience or neglect of the truth. We have seen the dangers of that in the political sphere also.
How relevant will the IHRA definition of anti-Semitism, already mentioned and now adopted by 103 UK and Irish universities, be? The definition is not legally binding, but it addresses modern anti-Semitism, which is dressed up as opposition to the very existence of the only country in the world that offers a safe haven to Jews in a world of rising anti-Semitism. The definition should help universities to understand this. Far from it dampening criticism of Israel and exploration of the Palestine/Israel issues, there is no issue more explored on campus. Just Google and see endless debates and actions relating to boycotts, targeting of Jewish students, violent protests and day in, day out debate about those very issues. Will the Bill prohibit the boycott by institutions and organisations of Israeli academics and universities and, sometimes, the refusal of professors to support Jewish students who want to study Israeli matters or require references? There really is a problem but the Bill may very well make it more complex, more expensive and even worse.
Baroness Hoey (Non-Afl)
My Lords, I find it rather depressing that Her Majesty’s Government have had to bring forward a Bill to ensure freedom of speech in higher education. I grew up in an era when you aspired to go to university not just to get wonderful academic teaching leading to a degree, but also to have the opportunity to explore new ideas, face challenges you had not met before, widen your horizons and challenge some of the traditional views. The idea that someone might not like what you said and try to stop or cancel you—a word we had never heard of in those days—rather than debating or arguing was unimaginable.
I understand why many in your Lordships’ House do not seem to think that the Bill is right but, sadly, I believe that the need for it is now clear and the reasons for the changes are many. I refer to the Policy Exchange report from 2020, which found a significant lack of “viewpoint diversity” at universities. Some of the statistics were shocking. As someone who campaigned all over the country for the United Kingdom to leave the European Union, the one that stood out for me was that just over 50% of academics would feel comfortable sitting next someone at lunch who was known just to have voted to leave—not even to have campaigned, so I will not be getting many invitations to academic lunches. That is just for having used your vote democratically in a parliamentary approved official referendum.
We have seen individual academic career prospects and access to research funding adversely affected by discrimination based on the individual academic’s views. Of course, the hounding of Professor Kathleen Stock, forced out of Sussex University by constant and repeated abuse and intimidation because of her views, has been slightly a focus of this Bill. But if this could happen to someone such as Professor Stock, how many other people coming into university to teach for the first time suddenly find that they have to be very, very careful about what they say?
A higher education council study is also alarming. It tracked attitudes of a representative sample of university students over the past six years. What it found should alarm all of us. The new generation of university students is increasingly supportive of removing from their campuses words, ideas, books, speakers and events they find uncomfortable or offensive. They seem willing to impose restrictions on others and to curtail views they disagree with. “Safe spaces” seems to be this new buzz word. We have to shield students from words and ideas that make them uncomfortable, and if you question or challenge this orthodoxy, you should be punished or ostracised. Matthew Goodwin pointed out in an excellent article on Unherd that a lot of this is happening right here in our own universities: refusing to allow tabloid newspapers to be sold on campus; banning speakers—maybe only a few, but nevertheless—who offend students; supporting getting rid of academics if they teach material that offends; and removing memorials of historical figures.
I do not want to stop anyone—to stop students—protesting about something they feel strongly about, and I do not believe the Bill does. In my day, we were always protesting about apartheid in South Africa, for example. I do not even mind students criticising lecturers on the grounds of the quality of their teaching; again, I do not think the Bill does that.
Academic freedom must be the primary duty of universities, and it should be defined more broadly than it is in the Bill. Too many of those in charge of our universities have been too weak or complacent to fight back against some of this behaviour. Too often, they have given into any demand from the student body, which must be agreed with at any cost, or they agree with anything that looks like it is the latest fad or, if I may use the term, a woke issue.
There will be amendments to this Bill which will make the protections of academic freedom stand fast. For example, in saying that HEPs must take reasonably practical steps to secure freedom of speech within the law, the duty is not clear enough. The responsibility to secure lawful free speech on topics of an academic or political nature should be an absolute and positive duty. I am sure that other amendments will come through your Lordships’ House, many of which have been suggested by what I consider to be the excellent Free Speech Union.
This freedom of speech Bill is about education, and education is devolved, but surely freedom of speech in universities across the United Kingdom should be in the Bill. In Northern Ireland we have one Russell group university, Queen’s University, and the University of Ulster. Why should this not apply there? If we wait for an Assembly to do something like this, none of us, not even the youngest Member of your Lordships’ House, will be around to see it happen. An amendment should be brought in to include those universities. Freedom of speech should not be a devolved issue. I remind your Lordships that, in the Ashers cake case, the Supreme Court recognised that ECHR Article 10 must include the right not to have to say what you do not believe. Prohibition of forced speech must be a key element of freedom of speech.
The Bill can be amended for the better to meet some of the challenges that noble Lords have already mentioned, but I support it. If it is changed quite a lot, it might be a wake-up call to those in authority in universities who have perhaps taken their eye off what academic freedom really is.
Lord Johnson of Marylebone (Con)
My Lords, I draw attention to my interests in the register, as chairman of Access Creative College, chairman of ApplyBoard and as another visiting professor at King’s College London.
I welcome what the Government are trying to do in this area, and it is obviously of great importance to the vitality of our higher education and research system. The Bill represents a very significant extension of the existing legislation on the statute book in relation to freedom of speech in higher education and, as my noble friend Lord Willetts said in his excellent speech, it will require significant reconciliation with the Prevent duty, the IHRA and other legislation coming through this House in this Session. Some of that tension obviously already exists with the existing legislation, but it will get a lot sharper as a result of the new tort, the statutory complaints system and the creation of the role of the director of free speech within the Office for Students.
Because these issues have already been pretty well debated in the other place, and here this afternoon, I want to focus in my brief time on the Government’s recent amendment on Report in the other place in relation to overseas funding. This came in relatively late and has not received as much attention as it might have done. It is a very important addition to the Bill and, although I very much support what it is trying to do, it requires significant improvement as it goes through this House. This section of the Bill now manages at once to be excessively bureaucratic and to miss a significant part of the problem that arises in relation to overseas funding of our higher education system.
The four categories of relevant funding that are addressed in the Government’s amendment are good as far as they go: namely, endowments, gifts and donations; research contracts; research grants; and educational and commercial partnerships involving foreign Governments, foreign organisations and politically exposed people in countries that are not on the approved ATAS list. If your funding comes in one of these sources from a country that is not a NATO or EU country, or Japan, Singapore or South Korea, you will be captured by the reporting requirement. My concern is that the reporting requirement is ridiculously bureaucratic. That arises because the threshold that has been set is far too low, at a proposed £75,000.
Take UCL, for example. This is an organisation with income of £1.6 billion in the last financial year, £500 million in research grants and almost £50 million in philanthropic donations. Obviously, not all higher education institutions in this country are as big as UCL, but to ask UCL to devote resources to counting every dollop of £75,000 that might come from an overseas source in this way is ridiculous. A more suitable threshold might be £1 million.
The control-freakery of the proposed threshold contrasts starkly with the super-chillaxed way in which the Government’s chosen definition of overseas funding manages to exclude altogether the largest source of such overseas funding: the income that universities receive from the uncapped tuition fees from international students. To be clear, I strongly support the contribution that international students make to the success of and the learning and research environment in our universities. However, it is extremely important, for obvious reasons, to have a diverse international student body, and I worry about the concentration of students from particular countries within some of our most significant institutions. This concentration of students from particular countries has the potential to create financial dependencies on student flows from particular countries that may limit freedom of speech and result in academic self-censorship.
Six of our Russell group institutions had more than 5,000 Chinese students in the most recent academic year. One of our leading Russell group institutions has more than 11,000 Chinese students out of a student body of 44,000. That is a very significant number; by my back-of-the-envelope calculation, they must be bringing into that institution more than £200 million of tuition fee income, representing at least a third, possibly more, of its tuition fee income from domestic and foreign students combined. This is potentially creating a lack of financial resilience in some of our most important research organisations and, with it, the associated threats to freedom of speech and research integrity that arise precisely from this dependence on the income from students from one big and autocratic country. This is a dependence that is now too big to ignore.
Others in this debate have raised the question of self-censorship. This is very difficult to measure precisely but we must not be complacent about it and pretend that it is not a problem in academia. As Professor Kerry Brown, the leading China expert at King’s College London, recently wrote in a paper for HEPI on China and self-censorship:
“While one can sometimes find tangible evidence in the form of conversations, emails, letters or other means, that pressure has been placed, with much self-censorship the act itself is invisible—it occurs in people’s heads, before and as they write and is very private … What is clear is that in the last few years, the fear and anxiety of facing individual and institutional consequences for straying over the ever-shifting red line that manages to offend China has risen dramatically … China is increasingly willing to call out those who criticise it. For universities, this can run the risk of impacting on the recruitment of Chinese students, or undertaking research collaborations with China.”
These are issues to be discussed in greater detail in Committee, but this is why I would welcome a broader definition of overseas funding than we have at present in this Bill. It would be sensible to add a duty on the Office for Students to consider whether a registered higher education provider is overly reliant on overseas tuition fee income from students from a single country of origin. If we are to legislate again on freedom of speech and higher education, this surely must be part of the discussion.
Baroness Garden of Frognal (LD)
My Lords, it is a pleasure to follow the noble Lord, Lord Johnson, who was a very open-minded higher education Minister. This has been a fascinating debate, but quite disconcerting. We have just been dealing with the Schools Bill, a Bill so bad that three Conservative Education Ministers have called for it to be terminated, and now we face another Bill which appears unnecessary, irrelevant and possibly harmful too. When Gavin Williamson, the then Education Secretary, introduced it in the Commons, he was constantly interrupted with questions, complaints and observations from all sides about why the Government were wasting time on such a Bill. We do not interrupt in our House, we listen courteously, and I thank the noble Earl the Minister for carrying out the hapless task of trying to convince us that this Bill is worth our time and trouble.
Higher education institutions are more than aware of the importance of freedom of speech. It is important that young people should be exposed to views contrary to their own, in a caring and learning environment where views should be respected but most certainly challenged where they are prejudiced, ignorant or harmful. No one has a right not to be outraged or offended, although increasingly some young people feel that they should not be exposed to views contrary to their own. I remember a number of revolting students at Oxford in the 1960s and some very robust debate, but I do not think that any of us suffered from it.
The recent HEPI survey, which my noble friend Lord Wallace referenced, is disturbing in the number of young people who do not seem to want to operate outside their comfort zone. But why is this Bill needed? An assessment by the Office for Students found that just 53 out of 59,574 events with external speakers were refused permission in 2017-18. Perhaps that was an unusually slow year for cancel culture and there is a real problem. However, the Bill comes before we have had a proper national public debate about where we think the acceptable boundary sits between speech that is offensive or hurtful but that ought to be permitted under the Bill, and speech that is harmful, divisive and, although perhaps not unlawful, has no place on campus. We have not had that debate, so the Government are rushing into legislation before we have much tangible evidence of the boundaries of acceptability.
Freedom of speech and the free exchange of ideas in pursuit of truth and knowledge are central to our universities’ whole purpose, but where is the evidence that there is a problem? This Bill is unnecessary and unclear. There is a real risk that our universities will be subject to vexatious and frivolous claims, which will cause distress and waste time and may make universities more risk-averse and more cautious about whom they invite to speak. So students will not be exposed to contrary views or be able to frame arguments and responses in defence of their own views.
Of course, we have a right to free speech. We need to be able to challenge people whose views are different from ours. Informed public debate is a vital element of a democratic society. It is vital to academic freedom, however difficult and contentious it might be, but, as has already been mentioned, we already have laws to protect free speech in the Education (No. 2) Act 1986. We really do not need any new laws, particularly ones as contentious as this. We have an Office of the Independent Adjudicator for Higher Education—and our thanks to the noble Baroness, Lady Deech, for that. Why can it not deal with any problems in this area? The new director seems to have alarming powers, apparently without the need for any legal background.
I turn to no-platforming. As we have already heard, in 2019-20, of almost 10,000 events involving an external speaker, just six were cancelled—that is 0.06%. It is not a major problem and the heavy-handed proposals in this legislation are certainly not justified or needed. It has been said that this is an authoritarian sledgehammer to crack a nut. It might well give universities a reason to stop holding events that would broaden students’ minds.
We oppose the Bill. It is not based on evidence and is not proportionate. Worst of all, it actively undermines the very principle of free speech that it claims to support. Free speech is about the right of every individual to speak truth to power, but the Bill does the opposite. It gives those in power or with power the ability to determine who is free to say what. Far from protecting our freedoms, it is yet another example of the Government’s concerted efforts to take our freedoms away. Given that universities are already required to protect freedom of speech and that research suggests that no-platforming is incredibly rare, the Government should drop this Bill entirely.
As others have said, the likely consequence of all this is that universities and student unions will err on the side of caution and steer away from anything risky—in other words, not more free speech but less—and for those with really outlandish views, there will be a legal stick with which to beat institutions. We have already heard from the noble Baroness, Lady Royall, the great quotation of the principle:
“I disapprove of what you say, but I will defend to the death your right to say it.”
We have wasted enough time on the Schools Bill. Please do not make us waste yet more time on this one.
Baroness Stroud (Con)
My Lords, I support this higher education Bill. I am sure it will benefit from the input of noble Lords in this Chamber, but its intention is good. This Bill is one of the first of its kind worldwide. It resets the balance in favour of freedom of thought and expression. It comes at a time when our public discourse and intellectual conversation are becoming increasingly intolerant.
Academic freedom is central to the character and nature of who we are as a nation. It is essential for the discovery of and search for truth, the foundation on which we build our society, to which my friend, the right reverend Prelate the Bishop of Coventry, drew our attention earlier. It is essential for the development of a resilient generation of critical thinkers who are not afraid of ideas. It is essential for progress: without the freedom to think and express the free exchange of ideas, the entrepreneurial spirit and the drive for innovation are extinguished. They are essential to the growth and prosperity of our nation and to a truly democratic society.
Only when people are able to think freely, speak freely and exchange ideas freely are good ideas able to flourish and bad ideas defeated. It is therefore vital that this freedom is protected among those whose very profession it is to exchange and debate ideas and pass them on to the next generation. There are some who, as we have been doing this afternoon, genuinely ask the question: “Is academic freedom under threat?” But for those who have sons and daughters in our universities, or who are connected with the academy, the answer will come back: “Yes, it is.” Perhaps it is not in the minds of those in illustrious posts that some hold in this Chamber, but parents up and down the land and professors and lecturers in our universities would say that that is their experience.
We need only consider the recent experience of Professor Kathleen Stock—hers one of nearly 100 recently recorded cases—to appreciate the toll that academic intolerance can take on the lives of those who dare to speak out in an increasingly hostile public square. This is damaging not only to the individual academic concerned but to the intellectual growth of our next generation of students. These students will soon join businesses up and down the land as active participants in the public square and in our workforce. They need to be able to engage in new, innovative and exciting ideas without fear and with creativity.
I appreciate that for some of your Lordships, like me, it has been a few years since we last sat in a tutorial or a lecture. I acknowledge that students have always questioned and critiqued dominant societal narratives. However, in recent years the power of students and student unions to lobby, disinvite and cancel speakers and professors from their universities has gained traction. This matters and universities do not appear to be equipped to resist this. For example, time and again university administrators have pursued the path of least resistance, opting to cave in to vocal minorities who seek to cancel or censor those who are disagreed with. Much of the focus of this afternoon has been on the free exchange of ideas between students, but this about professors and lecturers within universities as well. This cancelling of a speaker then creates a chilling effect in the academy, disincentivising those who profess new or unorthodox views from participating. This, in turn, damages viewpoint diversity, essential for a world of creative ideas to flourish.
Recent research at King’s College London suggests that one-quarter of students are self-censoring their views. Survey data collected by the University and College Union, a trade union representing more than 120,000 academics and support staff, suggested that one in three academics now self-censors due to the fear of suffering negative consequences if they voice their views or deviate from the dominant orthodoxy. This matters.
This environment in the academy has very real consequences, not only for scholarship but for professors and students themselves and, ultimately, for our nation. UK academics are significantly more likely than their counterparts across the European Union to report abuse and bullying, and to feel the need to conceal their beliefs. In a competitive marketplace of ideas, when we need to be driving growth and innovation, academic freedom stemming from the freedom to think and speak is critical.
I support this Bill because of the appropriate and moderate ways in which it seeks to actively promote academic freedom on campus and address the chilling effect of our cancel culture. I particularly draw attention to the creation of the free speech champion, which was discussed earlier. When a student or academic has been cancelled despite acting within the law, the free speech champion would be empowered to investigate and potentially fine or sanction the censoring bodies. The creation of this champion coincides with strengthening the duties around free speech, particularly around student unions, requiring them to respect freedom of speech as they carry out their functions. This Bill will give the regulator the teeth it needs to ensure that academic freedom is not just protected but promoted on campus.
Academic freedom is the ability to put forward new ideas and controversial or unpopular opinions. It is vital to remember that many of the intellectual and cultural positions we now seek to preserve came into existence by questioning the majority view. Academic freedom, alongside freedom of thought and freedom of speech, are our cardinal democratic freedoms: it is from these freedoms that all other liberties flow. If we get this Bill right, Britain can continue to declare itself a beacon of freedom and a model from which academic systems around the world can take inspiration, and we will empower the next generation to be intellectually resilient, able to engage with challenging ideas and equipped for all that lies ahead.
Baroness Chakrabarti (Lab)
My Lords, I declare interests as a former chancellor of the Universities of Oxford Brookes and Essex, as, variously, a visiting and honorary fellow and professor of a number of universities and constituent colleges, as a visiting professor at the LSE and as, over this last academic year, someone who has benefited enormously from working with a PhD student at King’s College London.
I have always campaigned for freedom of speech and for all other fundamental rights and freedoms, from which it cannot be plucked or separated. I have done this, or tried to do this, on behalf of those who were for the moment vulnerable, demonised and endangered, including those with whom I profoundly disagreed and who have even denigrated the very rights that should protect them.
Today feels like “a bright cold day in April, with the clocks striking thirteen”. This Bill is wrong-headed in principle and clumsy in execution. Freedom of speech is not advanced by particularism, complex or onerous regulation or government tsars but when we each practise what we preach, lead by example and understand that it is the ultimate two-way street in a human rights framework built upon equal treatment, the very antithesis of which is partisan protection and hypocrisy. In short, my speech cannot be free while yours is always treated as a little more expensive or otherwise put practically beyond reach.
This Bill comes amid a wave of anti-rights legislation and rhetoric. In particular, on-street dissent has been criminalised today by the Police, Crime, Sentencing and Courts Act and will be eroded still further if the measures copied and pasted from anti-terror law in the Public Order Bill are allowed to pass. Cabinet Ministers and other government sources are on the record for their “war on woke” which, by definition, prioritises opinions that they find agreeable over those that they find uncomfortable in a kingdom that they do not seek to unite.
In a manner reminiscent of Mr Trump across the water, pro-Brexit protesters in 2019 and statue defenders in 2020 were actively encouraged by some of the same Ministers who now seek to impugn climate and race-equality activists and lawfully striking and picketing trade unionists. So higher education providers and student unions have good prior reason to give a critical, sceptical reading to this Bill.
To add insult to injury, we are speaking less than a week after the Government’s introduction of what Amnesty International called the “Rights Removal Bill” and at least one noble Lord opposite called the “Bill of Wrongs”. This proposes to repeal the Human Rights Act without a single enhancement of rights protection but drastic diminution instead. This is forensically important, as the Department for Education relies heavily upon the Human Rights Act in its various explanations and justifications for this opaque Bill.
In particular, while the rights removal Bill has been sold as enhancing free speech, it reduces the positive obligations on public authorities to guarantee rights within their realms and attempts to limit Article 10, on free speech protection, to areas outside the criminal law. That licenses ever-broader anti-speech offences and police powers in the future. So far from being universalist, the Government’s approach to rights and freedoms is not even constitutional or one-nation. Instead, it is contradictory and partisan.
As to the detailed convolutions of this Bill, your Lordships’ House will want to allow significant time for their scrutiny in Committee. In the meantime, will the Government prepare new memoranda explaining how the provisions will interact not just with the Human Rights Act, which they plan to scrap, but with its so-called replacement, alongside the Equality Act and Prevent programme, which has been such a complication of, if not threat to, free speech on campus, and all the other pre-existing regulatory duties on higher education bodies?
How can it be a protection of academic freedom to give more and more power over independent institutions of scholarship to the Government’s Office for Students and the new director for freedom of speech? Who is going to fund litigation for claims and defences of a breach of the new statutory duty, at a time when civil legal aid is virtually non-existent? How will institutions be protected from vexatious litigation by wealthier interest groups in particular? As to the new provisions relating to foreign funding, who should decide which funding is or is not acceptable in our world-class academy? How will our institutions of higher learning be protected from the weaponising of provisions in this Bill as proxies for human rights and other disputes internationally? What are the Government doing about what many academics feel to be the real threats to their freedom—precarious employment, lack of representation on governance structures, directions as to which research to undertake and political interference, including the attack on the arts?
You cannot cancel cancel culture, any more than you can realistically no-platform ideas you detest in the age of the internet. However, you can demonise the courts, the arts, the academy and even the young in a culture war of divide and rule. Some speech is free, it would seem, and some is rather more expensive: that is the real message behind this Orwellian Bill.
Baroness Shafik (CB)
It is a pleasure to follow the noble Baroness, Lady Chakrabarti, who brings a great deal of expertise and insight to this important debate, as indeed have all Members who have contributed. I thank the Minister, first, for the comprehensive introduction to the debate and, secondly, for the constructive and kind way in which he has engaged with me in advance. I have also discussed assurances with the Secretary of State. I draw noble Lords’ attention to my registered interests, specifically my role as director of the London School of Economics and Political Science, which of course will be directly affected by this legislation.
It is absolutely right that the Government want to protect and promote freedom of speech. Indeed, freedom of speech and academic inquiry is central to everything that universities do. That necessitates the full freedom to pursue lines of academic inquiry, even when they may end up in uncomfortable places. At the LSE, our very international community welcomes speakers from across the political, national and ideological spectrum to its campus, as the noble Lord, Lord Wallace, noted. They set out their stalls, respond to challenge and, in the best traditions of university life, educate our students on different points of view and, more importantly, on how to engage with those different points of view with intelligence and respect.
As the noble Baronesses, Lady Thornton, Lady Royall and Lady Garden, noted, the House Library references a report and a survey of 10,000 cases of external speakers, only six of which were cancelled. That is 0.06% of all events surveyed. I am proud to say that, as far as I know, at LSE we have never no-platformed a speaker. That is because we actively manage and promote freedom of speech collectively. It is an interesting question whether you need 23 pages of legislation for a 0.06% problem, particularly given that the higher education sector faces so many other challenges, but here we are.
I turn to the content of the Bill, which proposes a new legal “Duty to promote” under Clauses 1 and 3. This would change the legal balance between the protection of freedom of expression and other statutory duties placed on universities over the years, such as the public sector equality duty and the Prevent duty. Those duties are in potential conflict with this legislation, as noted by the noble Baronesses, Lady Deech and Lady Chakrabarti. I would very much welcome insight from the Minister into how all these duties will coexist successfully and what guidance will be available to universities to avoid being caught in the middle of conflicting legal obligations.
Clause 4 would create an avenue for civil proceedings for anyone who believes that their freedom of speech has been curtailed. Drawn too broadly, this new tort would pave the way for vexatious, time-wasting and expensive litigation, as many Peers have noted. The Bill is very unclear as to the exact circumstances that would allow this tort to be pursued. For example, will there be a threshold of harm? I believe that there should be, similar to the threshold in the Defamation Act the Government passed in 2013. Will the Government confirm that this new tort could be pursued only if the existing university complaints procedures had been exhausted? Again, I believe that this should be written into the legislation, analogous to the protections in the new OfS complaints scheme set out in Clause 8. Better yet, choose just one route for complaints, as the noble Lord, Lord Willetts, suggested. I suggest that the regulatory route would be much simpler than the litigious one.
Clause 10 legislates for the new director for freedom of speech and academic freedom in the Office for Students, which has been much discussed. Of course, I understand that if we pass this legislation the Government will want expertise in the Office for Students to keep an eye on it, but we must be clear: the director must be an expert. I know that the recruitment process for this director has started. It would be reassuring to know that the selection panel is well staffed by those with expertise in the legal issues around free speech and the challenges facing universities, and will choose someone with expertise in both areas.
I turn finally to Clause 9, which sets out the requirement for the reporting of foreign donations to and contracts with UK universities. It is understandable that Ministers want to keep an eye on relationships with foreign powers and organisations, especially where there are issues of national security, but this must be proportional and risk-based. I therefore strongly welcome the Government’s commitment to ensure that there are sensible exemptions to the new reporting regimes, especially where national security risks are low. Although these exemptions will be set out in subsequent guidance, it would be helpful to have on the record the Government’s thinking thus far before the Bill passes. The Government have suggested a reporting threshold of £75,000 for foreign funding, though the equivalent in the United States is $250,000. A sensible equivalent would reduce undue bureaucracy and expensive costs for what are small-scale arrangements, as mentioned by the noble Lord, Lord Johnson. I am also keen to understand what additional resource the Office for Students will have to monitor what will be a significant increase in its workload.
In conclusion, I thank the Government for the constructive way in which they have approached this legislation so far. As the Bill progresses, I hope we can achieve some sensible amendments that will enable the Government’s ambitions to protect free speech while supporting a universities sector that continues to be the envy of the world.
Baroness Fox of Buckley (Non-Afl)
My Lords, the noble Baroness, Lady Shafik, raises some interesting, detailed points that I hope we can look at in Committee. More broadly, I welcome the Bill—although I do so with something of a heavy heart and qualms.
I regret the need for legislation to enforce what should be intrinsic to universities, academic freedom, but I have watched with horror as the HE sector has tried to balance free speech against an ever-expanding array of institutionalised values and mandated outcomes over recent years: student satisfaction targets; promotion of equality, diversity and inclusion initiatives; and external benchmarking schemes in racial diversity, gender identity and environmental literacy. All can and do undermine curriculum freedom. Then there are the demands of the REF and the managerial prioritising of employability skills—on and on it goes. In the midst of this, academic freedom can and is squeezed out and deprioritised.
I hope to amend the Bill to strengthen the idea that academic freedom is the primary duty of universities. It is what distinguishes universities from think tanks, policy and research NGOs, private companies or tutorial and teaching services. The pursuit of knowledge for its own sake and true freedom to explore and challenge ideas without fear or favour are the point of academic freedom—no ifs or buts—and what makes a university a university.
Of course, we need to be wary of government overreach in the autonomy of universities and careful of the Bill’s unintended consequences, such as the chilling effect on students’ right to protest. I get the irony of the scorn poured on the Bill as a device for cancelling cancel culture. More than anything, I do not want the Bill’s proponents to treat this legislation as a technocratic silver bullet, as though all will be well if it is passed. Beware of legalistic complacency. Many of the most egregious censorious trends are cultural, informal and deep rooted, and need to be debated and defeated through the battle of ideas.
The main challenge the Bill faces are the opponents who dismiss the need for it, as we have heard here today, and see it as a hyped-up moral panic—some kind of tedious Tory culture war against woke students. I concede that the Government’s inconsistencies do not help to reassure. A few months ago, Education Secretary Nadhim Zahawi declared that he would crack down hard on academics who espouse dangerous narratives on the Russia-Ukraine war. Does this mean that the Government’s commitment to academic freedom is dependent on academics holding the correct views on foreign policy, or should we defend the free speech of useful idiots as well as those we agree with? The elephant in the room is surely the Online Safety Bill—a huge threat to free speech in the UK, as the noble Lord, Lord Willetts, indicated. He also noted a number of other contradictory trends.
That said, I think the gaslighting of those of us who raise the growing problem of censorship on campus is a form of denialism that is unhelpful. When I wrote the book, ‘I Find That Offensive!’, on the rise of Generation Snowflake’s campus censorship, I was accused of manufacturing a sensationalist crisis. Actually, I underestimated the trend. My motives were challenged as raising the alarm; I was treated as rather dodgy. That is the same as the cheap, conspiratorial accusations we have heard in this House today that this Bill is driven by some alt-right agenda as a disguise for hate and bigotry to gain a voice.
The idea that the Bill is a sledgehammer being used to crack a nut is expressed by those who seem stuck in the past with a dismissive, “Oh, it was ever thus—nothing to see here”. We keep hearing the same evidence from Wonkhe of 10,000 events involving external speakers, and only six were cancelled, and so on. But these no-platform stats miss the important point. Comments from opposition Benches here ignore the corrosive rise of self-censorship that the noble Baroness, Lady D’Souza, raised. You do not have to be de-platformed to feel its chill wind. The NUS has a guidebook called Managing the Risks Associated with External Speakers. If you are an external speaker, as I have been many times, you are asked to sign a form promising not to say anything that would make the audience feel uncomfortable.
The message is, “Watch what you say.” Often, speakers are cancelled, dismissed, or simply warned about the content of speeches on the basis of harm and safety—“Be careful”. JS Mill’s harm principle has now been expanded exponentially to include psychological harm, pathologising debates through the prism of therapeutic terms, with trigger warnings and post-traumatic stress disorder if you hear the wrong thing and so on. Safe spaces are not about protection of physical safety, but safety in terms of protection from dangerous ideas.
The threat of external speakers being banned as a safety risk today is very different from the no-platforming of the far right in the 1980s. It institutionalises the link between words and harm. No wonder people bite their lip. As has already been indicated, the main problem is less about external speakers than about a toxic atmosphere on campus for students and staff; self-censorship is damaging to intellectual inquiry. There is a mood of snitching and “watch your back”, a system of public shaming—of reporting one’s peers for “wrong-think” for comments made in seminars or in the bar.
Only recently, we saw the University of Cambridge setting up an anonymous reporting system, encouraging students and staff to name anyone considered guilty of a wide range of listed micro-aggressions. It is no surprise that in 2017 the trade union, the University and College Union, in its own report on academic freedom, reported that 35% of its members self-censor for fear of loss of privileges or demotion. A 2020 Survation poll for ADF found that 29% of students in British universities keep their views hidden when they are at odds with their peers or lecturers, that 40% withhold their views on religious or ethical subjects, and God help any Hungarian students studying in the UK who dare to admit that they voted for Orbán if they are at universities led by people in this House. Apparently, that is enough to get you cancelled. They would stay schtum.
If the price of expressing the wrong views is that you are dubbed the purveyor of hate, bigotry or wrong-think, obviously students and staff will shut up or are so careful that it leads to an anodyne, enervated and sanitised learning environment antithetical to an intellectually lively atmosphere of free inquiry. We should also note that it is not being cancelled but the process of being accused and investigated that has become the punishment, leaving a stigma and a question mark on one’s reputation. You have only to look at the case files of Academics for Academic Freedom or the Free Speech Union to get the gist.
In October 2020, a group of LGBT activists tried to get a porter from Clare College sacked because, in his role as a Labour councillor, he voted the wrong way on the issue of “trans women are women”. I do not blame those students; I blame our generation for not setting an example to them, and I blame those people who run universities for not looking them in the eye and saying, “Academic freedom matters more than anything else.” That is why I hope this Bill will help.
Lord Cormack (Con)
My Lords, it is always a great pleasure to follow the noble Baroness; she makes stimulating speeches. She does tend to overegg the pudding a bit; nevertheless, I listen to her with great interest, and I am delighted to follow her.
Free speech is more important than anything else—and we in this place ought to know that better almost than anyone. “The price of liberty,” said Burke—and of course, liberty without free speech is impossible—“is eternal vigilance.” I am glad that we are having this debate because there is currently a tendency among some to be a bit complacent. One thinks of some pretty horrific examples: Kathleen Stock, who has been mentioned by noble Lords on two or three occasions, and JK Rowling.
One of the cancers of our age, which makes the proliferation of coarse speech and crude attack so much easier, is social media. Many in our universities, and others, use this, and many suffer from it, so it is right for us to ask: what can we do about it? But I do not think a Bill like this is necessarily the best way forward.
Those who have questioned the wisdom of the Bill have more than a point. I say to my noble friend—who introduced the Bill with his characteristic gentle elegance and in whom I have as much trust as I have in anyone in political life—that it needs to be significantly improved if it is to go on the statute books and fulfil its purpose. I do not think we need such a Bill but, clearly, we are going to have one, so it is the duty of your Lordships’ House to make it as effective as possible, and as least disruptive as possible.
Speaking as one who has the honour to have been a visiting fellow at St Antony’s College, Oxford, who helped to found the parliamentary fellowship scheme 30 years ago, and who is still admitted to the senior common room—I have also visited many other universities, and I am on the court of Lincoln University—I believe that we have institutions of which we can be truly proud. But it is very important indeed that students are exposed to views and attitudes that they consider to be offensive, because that itself is stimulating. Unless you can produce a counter-argument, you have not understood the argument. It is crucial that our young people are stimulated and exposed to a variety of views, just as they should be exposed to a variety of academic and scientific disciplines. I very much hope that one thing that will be a casualty of this Bill is the so-called “trigger” movement. It has been dismissed, I am glad to say, but it was even suggested that the online version of Hansard should be adorned with trigger warnings that there may be some offensive language to follow.
Lord Cormack (Con)
Indeed, shame. I believe we have had that dealt with.
We know about the counterculture and the cancelling because earlier this year four of us were complained about to the Commissioner for Standards because of remarks we had made in a good, vigorous and brief debate on an amendment to a Bill that sought to end the presence of physically intact males in women’s prisons. The committee, now chaired rather splendidly by the noble Baroness, Lady Manningham-Buller, rewrote some of the rules and guidance, and the fundamental right that Members of both Houses have enjoyed since the Bill of Rights in 1689 was underlined thrice. That is as it should have been, but if we can be threatened even in this place then we have to be vigilant about the defence of free speech. If free speech is eroded in any way in our universities, the institutions from which future Members of both Houses will come, then that does not augur well.
As we know at the moment, democracy has to be fought for. As we know, there is a great power, the second greatest power in the world right now, which is already flexing its muscles in a variety of ways—roads and belts, belts and roads. We have to be a bastion of democracy, but we cannot be a bastion of democracy without having universities and colleges that produce vigorous democrats.
Lord Macdonald of River Glaven (CB)
My Lords, since the noble Lord, Lord Whitty, is not present, it is my great pleasure to follow the noble Lord, Lord Cormack. In doing so, I refer to my entry in the register of interests as a former warden of Wadham College, Oxford and an honorary fellow there and at St Edmund Hall, Oxford.
I disagree with noble Lords who perceive no problem to be addressed, but I agree with noble Lords who have argued that the Bill addresses those problems in the wrong way. A few years ago, around 2014, when I was working in Oxford, I attended a public lecture given by the dean of the law school of a leading American Ivy League university. My role was to respond to his remarks before the topic was opened up to audience participation. He was addressing the question of free speech and to my consternation—and of course I paraphrase him somewhat—he posed the argument that free expression could most accurately be seen as a weapon of power in the hands of elites who were licensed by law to employ it to repress the disadvantaged and marginalised. In this sense, as he saw it, limits on the right to free expression could be seen as protective and in some circumstances even liberating. Language was power, and to police it could therefore be radical and affirming. In my responding remarks, I strongly disagreed with him and suggested that it was all right for him to be playing with such ideas, with all his copper-plated US first-amendment protections, but in Europe, where legal protections for free speech have always been more contingent and conditional and have had a more painful, bloody history, he was playing with fire.
It is important for us to acknowledge that, eight or so years later, those ideas that I first heard expressed in an Oxford lecture theatre have become a little more mainstream. It is more common than it should be, including in the UK, to hear free speech categorised as a threat to safety, when it is not being decried in some intellectual circles as an Enlightenment sham. It is perhaps less common than it should be to hear it described as the greatest historical progenitor of human progress.
The reasons for that shift, particularly on the left side of politics, are complex. There are some genuinely progressive elements in play: the growing understanding of the importance to society of protecting minority rights; distaste for racism, sexism and homophobia; and hostility to unfounded discrimination. It is surely an unalloyed good that terms of racist, sexist or homophobic abuse are no longer acceptable and that these forms of speech have, by broad consensus and even by law, been curtailed. However, the inroads into untrammelled speech are now going somewhat further than that, and there is a danger that we are beginning to descend into a world where feeling trumps fundamental rights, including the right to free speech. In universities, that is a hopeless direction of travel.
We should of course not overstate the position. In my old university, the University of Oxford, there is a powerful attachment to the fundamentals of free speech, driven from the top. Oxford’s official free speech statement, which I drafted along with Professor Timothy Garton Ash, is explicit that robust intellectual exchange and views that shock, even which offend, are bound to be part of the currency of discourse in higher education, that this is part of the lifeblood of the university and that it should be welcomed in the interests of truth and learning. Of course, that lifeblood is stilled if feeling —a sense of being offended—becomes the determinant of what may acceptably said. That is the risk that I assume the Bill is intended to address, and I think we should be frank and acknowledge that that risk exists.
HEPI’s survey was analysed by the think tank in this way:
“The results show clearly that students have become significantly less supportive of free expression.”
I will not run through all the statistics, but some of them are alarming: 79% of students believe that students who feel threatened should always have their demands for safety recognised; 61% say that when in doubt their university should ensure that all students are protected from discrimination rather than allowing unlimited free speech; the proportion of students who agree that if you debate an issue like sexism or racism then you make it acceptable has doubled to 35%; 86% of students support the no-platform policy of the National Union of Students while only 5% say the NUS should not limit free speech or discussion; 39% of students believe that student unions should ban all speakers who cause offence to some students; and the proportion of students who think that academics should be fired if they teach material that heavily offends some students is now 36%, up from 15% in 2016. So the direction of travel is towards a greater censoriousness and the prioritising of feelings and something called “safety” over more traditional free-speech values.
It is noticeable that no-platforming incidents, which newspapers routinely attribute to universities themselves, almost invariably result instead from decisions taken by very small numbers of students at poorly attended student union meetings. However, we have to acknowledge, as some noble Lords have, that this is the country—our country—in which a distinguished philosopher was forced from her university job for expressing, in an entirely lawful and respectful manner, gender-critical views: in other words, for exercising her free speech and her right to academic freedom. The fact that we all now probably suspect that Professor Kathleen Stock would struggle to gain future employment at another UK university without facing protests and boycotts even if she wanted to, which I understand she does not, is deeply worrying. I myself have had the experience more than once of young non-tenured academics lowering their voices when expressing to me views that they fear might not find favour with the bulk of their colleagues. That is troubling.
However, the Bill does not address these problems in the correct way, and I will swiftly indicate why. The first reason is bureaucracy. My experience of additional levels of bureaucracy is that they are not usually liberalising; quite the opposite—they tend to weigh down those to whom they are intended to administer. Will these new processes free up discourse, or will they do the opposite and encourage sclerosis?
The second is legal action. I can imagine many ways in which the process envisaged by the Government could become a tool of abuse, consuming time and resource to an uncomfortable degree.
Thirdly, the precise role and powers of the director of free speech—having listened to the speech by the noble Lord, Lord Wallace, with such pleasure, I was rather hoping he might apply for the position himself but, frankly, I do not think he would get past the vetting process—it is important that the independence of universities is protected and they do not become the plaything of quangos. Universities to the greatest extent should be self-governing institutions, and I am not attracted by the idea of a director of free speech running around issuing edicts that may or may not be workable on the ground. And how is all this to coexist with university anti-harassment policies? Harassment by speech occasionally exists and universities have to deal with it. It is not clear that Ministers have given sufficient thought to that.
My last reason is Prevent. Many of us argued when the Prevent duty was applied to universities that it created tension with existing legislation requiring universities to uphold free speech. At Oxford, we resolved this difficulty by deciding that the Prevent duty to address so-called non-violent extremism speech—in other words, the apparent requirement contained in the Prevent legislation for universities in some circumstances to block speech that was perfectly lawful, as the noble Lord, Lord Willetts, noted—was to be viewed and applied within the context of pre-existing rights, including the right to free speech. That seemed to work well. Does the Minister agree that, if the Bill is passed, the Prevent duty as it applies to universities will be subject to the free-speech strictures contained in the Bill?
Lord Moylan (Con)
My Lords, it is a privilege to follow the noble Lord and I rise as a rare speaker from the Conservative Benches who neither is nor ever has been a visiting professor or honorary fellow at a distinguished academic institution. I started this debate with quite an open mind but, listening carefully to the speeches opposite, I have been persuaded to give whole- hearted support to the Bill.
First of all, the Bill is not about student protest. When I was president of the Oxford Union many years ago, I had the privilege of welcoming the former President Richard Nixon to give an afternoon lecture. The demonstration was huge, carefully supervised by the local police and monitored by the US Secret Service. I welcomed that; the size of the demonstration was a measure of the success of the event. Even more than the numbers of students packed inside, the demonstration outside showed that you had really hit the button. I am not trying to stop student protest, nor is the Bill.
Instead, to understand the thrust of this Bill, it is helpful to start with one of the most perceptive, and one of my favourite, quotations from the late Lord Keynes. Since this is a debate of learned quotations, I hope noble Lords will forgive me if I read it to them:
“Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist. Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back.”
Indeed, I say as an aside to the right reverend Prelate the Bishop of Coventry, the whole debate around the Reformation was, in effect, framed by the academic scribbler he referred to, St Augustine of Hippo, some 1,100 years earlier, and the rather overexcited interpretations of those writings was still being worked out by a junior academic at a recently founded university lost in the forests of eastern Germany at the time.
The point I want to make is that academic thought has a real influence on social change, even if the time lag—as Lord Keynes said, it might be a few years or decades—is very significant. That is a really important point to take hold of. To take it a step further, taking their guidance from a contemporary of Keynes, Antonio Gramsci, activists are tempted in recognising this to seek to capture that academic podium precisely because of its long-term influence and, in doing so, to seek to deny it to others. That is exactly what many of us feel has been happening in our universities over the last decades.
Because of the shortage of time, I will not list examples. The noble Lord, Lord Macdonald of River Glaven, the noble Baroness, Lady Fox of Buckley, and others, have given many examples both of incidents and changes in attitude which illustrate what I think is going on and what is such a deep cause of concern to many of us. Noble Lords on the opposite Benches have said repeatedly that these incidents, which they admit are objectionable, are very rare. However, it is not the frequency of the events we should be looking at but their egregiousness. Their rarity could be taken as an example, proof or evidence of the success of the policy I have mentioned being pursued. As the noble Baroness, Lady Fox of Buckley, has said, the punishment is the process. As the noble Lord, Lord Johnson of Marylebone, said in relation to Chinese influence, self-censorship is the response. So, of course, if the policy is being successful, you would expect incidents to be rare. That in itself proves nothing.
This Bill is an attempt to rectify the balance in all of that. While it is probably inevitably ham-fisted, it none the less deserves our support in principle. It may be capable of certain improvements. I suggest two. I was very struck by the remark of the noble Baroness, Lady Fox of Buckley, that we should address the plurality of objectives that we impose on universities. A number of them were mentioned by the noble Lord, Lord Macdonald of River Glaven. We should address them by trying to create some priority among them: some are more important than others. I agree with the noble Baroness that academic freedom should perhaps be put at the top of that tree as an overriding priority, not simply competing with lots of others, which both confuses the leadership of universities and, equally, makes it easy for those who wish to exploit the situation to escape by running around different competing priorities. An amendment to that end would be very welcome and would provoke a very interesting debate.
The second area the Bill is wholly silent on, and where an amendment would certainly provoke some interesting debate, is funding. The Bill, as far as I can see, says nothing about the influence of funding on shaping academic debate and discussion and how capable it is of potential abuse. I mean both funding within the university and funding, usually on a much larger scale, from central funding councils making grants to support various areas of research. We might well want to see amendments to make that funding more transparent and show that it was balanced—I am not talking about funding flat earthers or people like that, but, within the limits of a sensible academic debate, making sure that people are being funded in a balanced and sensible way.
I welcome the Bill’s general principle and take the view that it could be strengthened. It would be a great mistake to try to oppose it by digging into the weeds. We need to see the trees and the forest, and to understand what we need to do.
Lord Sikka (Lab)
My Lords, it is a great pleasure to follow the noble Lord, Lord Moylan. I declare my interests. I am an emeritus professor at the University of Essex and the University of Sheffield. I have spent some 43 years in the higher education sector. I have spoken at academic venues all over the world and I have welcomed scholars and other speakers from all over the world.
I just cannot see the need for this Bill. I have not encountered the problems this Bill is trying to deal with. There is more diversity of views on university campuses than at party-political conferences, but I do not see the Minister trying to introduce the notion of free speech for party conferences. Maybe because the Government’s problem is that they are really attacking civil liberties and clamping down on dissent. After all, young people have to learn to express their views and they just do not like it.
The Government claim that the Bill protects free speech, but there is no indication in the Bill or the Explanatory Notes, as far as I can see, of when free speech crosses into hate speech. What are the boundaries? When does one become the other? Free speech is a social construct; it is always in the process of being made but is never finally made. It is shaped by contemporary discourses. On that basis, I am willing to argue against racism, but I will never provide a platform to anybody who is willing to argue for racism. Does that make me unbalanced? I doubt it. I am trying to prioritise social justice over some vulgar version of free speech, and the two inevitably clash. I hope the Minister will be able to tell us how we mediate this clash—how does the Bill deal with this?
In his introductory remarks, the Minister said that the Bill strengthens freedom of speech and academic freedom, but I can find no evidence of this in its proposals. Academic freedoms include freedom of inquiry, investigation, publication and dissemination, and these are all under threat from the funders and the Government. I will give some examples. Too many funding contracts include clauses that give funders the final say on whether research can be published. They can and have blocked, in subtle and not-so-subtle ways, the publication of unwelcome findings—they just do not like it.
A classic example is a pharmaceutical company that funded a researcher to compare its branded thyroid drug with generic competitors. The researcher found that the generic products were just as good as the expensive branded products. The publication of that research would have jeopardised the funder’s sales and profits, so the drug company went to incredible lengths to suppress the research, including taking legal action against the researcher and the university to prevent them publishing the findings. I do not see the Government outlawing any of this or dealing with that problem in the Bill.
Over the years, several studies have focused on links between cancer and passive smoking, and tobacco companies have secretly funded research specifically designed to refute these links. They design the research questions and collect and provide the data, and, in the final analysis, their employees write parts of the paper, which has an academic’s name on it, so that they can gain political advantage from the research.
Industry funding drives researchers to study questions that do not upset the funders, which often means that they focus on maximising benefits and minimising harms related to the particular funder’s products or services. That is unacceptable. Uncomfortable questions are simply not asked. I am an accountant, and you would be hard-pushed to find an industry-funded piece of academic work that examines audit failures in any depth—there are not many studies on it, because people know that they will not get the funding if they want to do that kind of research.
The Government themselves have eroded academic freedoms. In November 2020, the British Medical Journal published an article titled:
“Covid-19: politicisation, ‘corruption,’ and suppression of science”.
It documented four instances of government suppression of research during the Covid pandemic. In one case, the Government procured an antibody test that fell short of the performance claims made by the manufacturer. Researchers from Public Health England and collaborating institutions pushed to publish their study’s findings before the Government committed to buying a million of these tests, but they were blocked by the Department of Health and the Prime Minister’s office. Subsequently, Public Health England unsuccessfully attempted to block the BMJ’s press release about the research paper. The key issue here is the conflicting commercial interests and consultancies of Ministers and their advisers—they just did not want to see this piece of research.
I will give a personal example. Some years ago, I secured a small grant from the Institute of Chartered Accountants in England and Wales to examine the resignation letters submitted by company auditors. By law, they have to say whether there are circumstances in connection with their resignation that shareholders and creditors need to be aware of. This was a big study. Only 2.5% of the auditor resignation letters at plcs were accompanied by any statement listing the reasons. Almost all filed a nil return, even though there were headlines and front-page news stories about scandals within days of the auditor resigning. There is massive legal non-compliance. We submitted the findings to the Institute of Chartered Accountants in England and Wales, but it was not happy about them. There was no correspondence, and it was all done on the phone: “We will tell you”, “We will come back to you, and then you can come back to us”. Years and months passed by, and it never published the information. I have been in the game long enough, so, in the end, I knew what to do: I found alternative means to publish papers from this—but not everyone can. I never went back to any accountancy bodies for research grants again.
My point is that the Bill does nothing to check the funders’ influence on academic research, and it completely fails to advance academic freedoms. I hope that the Minister will give serious thought to this is. If not, I will consider tabling some amendments to further explore these points.
Lord Stevens of Birmingham (CB)
My Lords, I declare my interest as an honorary fellow of Balliol, my former interest as head of the largest employer of graduates in this country, and perhaps even my future interest as the parent of an 18 year-old, hopefully heading off to university next year.
Parliament is right to want to protect academic freedom and free speech on campus. We have heard specific cases of concern today, and there is a problem that needs to be nipped in the bud. But we do not need battle slogans from the culture wars. Any legislative proposals need to be carefully calibrated because there are complex and competing considerations.
We have heard today that conflicts over academic freedoms stretch back through history. The noble Lord, Lord Wallace, started the clock at 1968, the noble Lord, Lord Moylan, mentioned the Reformation, and the right reverend Prelate the Bishop of Coventry mentioned St Augustine. I am reminded that our oldest university, Oxford, predates Parliament itself and Magna Carta. In 1377, John Wycliffe, translator of the Bible, found himself no-platformed by Pope Gregory and dismissed from the university. As a student, I remember looking out at the Martyrs’ Memorial, where Cranmer, Latimer and Ridley were “cancelled” by Mary Tudor as they were burned at the stake. In 1683, the books of John Milton, our greatest advocate for freedom of speech, were not subject to a trigger warning but burned in the Bodleian. So history tells us that these debates go back a long way.
History also teaches us that the greatest threats to academic freedom have generally come not from within universities but from overbearing theocracy and an overreaching state. This remains true around the world today, and it is not a left-versus-right issue. The Republican Governor of Florida is currently trying to rig academic appointments and gag professors. Authoritarian regimes of all ideological hues cannot stand independent universities, which is why China, Hungary and Iran all score badly on the global Academic Freedom Index. Subject to the important points made by the noble Lord, Lord Johnson of Marylebone, and the noble Baroness, Lady Shafik, this is why Clause 9 is, in my view, right in principle to require transparency about our universities’ international funding from countries that do not respect academic freedom.
However, that concern about government intrusion is also why we should be judicious, nuanced and restrained before we impose more state regulation and political control on our universities. As was pointed out, in your Lordships’ recent debate on the Schools Bill, a number of former Conservative Education Ministers objected to a centralising power grab by the Department for Education. This Bill suggests that that was not a one-off aberration.
Since this is Second Reading, it is worth considering the underlying principles at stake. First, we need to consider whether the Bill yet satisfactorily combines free speech protections on the one hand with safeguards for academic rigour on the other. Universities promote academic free inquiry because it contributes to their distinctive mission, which is to advance knowledge and education through structured debate, based on reason and evidence. Unlike Speakers’ Corner in Hyde Park, Twitter or the op-ed pages of a newspaper, universities have a distinctive responsibility to instil respect for established facts and evidence-based knowledge. It is a fundamental epistemological misconception to argue that the mission of universities places them under some sort of obligation to give airtime or credence to those who argue, for example, that there were no gulags in the Soviet Union, that vaccines cause autism, that the Protocols of the Elders of Zion are genuine or that intelligent design explains the origin of the universe. I say to the noble Baroness, Lady Fox: that is not viewpoint diversity, that is crank conspiracy and licensed idiocy. The Minister for Higher Education asserted in the Commons that this is not what this Bill will produce. Here, in your Lordships’ House, we should consider perhaps clarifying amendments to ensure that it does not.
The second question is the one my noble friend Lord Macdonald raised a moment ago: are universities striking the right balance between challenging discussion and inclusive participation? If not, will the Bill help or hinder? Universities have to weigh conflicting goals and legal obligations. Universities are right to try to ensure equal participation for all their students, because in an academic setting, it is the quality of reasoning and evidence that counts, not whether you are Jewish, black, female or gay. White supremacists and religious fundamentalists who regard some students as inherently inferior are, therefore, themselves intrinsically incompatible with the proper functioning of a university.
On the other hand, many academics worry that claims for identity-based protection are increasingly being weaponised, with the risk that universities become so-called sanctuaries for comfort. This afternoon, we have heard statistics from the Higher Education Policy Institute survey quoted extensively. I will repeat a particularly salient data point raised by my noble friend Lord Macdonald: 36% of students believe academics should be fired if they teach material that heavily offends some students—a proportion which has doubled in the past six years. There is also accumulating scientific evidence, including from randomised controlled trials, that trigger warnings and the like may actually harm, rather than protect, survivors of past trauma. So we need a course correction if we are to avoid spiralling towards the poisonous antagonisms now paralysing so many US college campuses. In doing so, however, we need to tread with care. As the Bill stands, a new politically appointed commissar in the OfS would be handed sweeping powers to oversee free speech and academic freedom in this country. The Bill has completely inadequate safeguards on how that post is appointed and how the new role will operate.
Furthermore, as the noble Lord, Lord Willetts, rightly argued, if the OfS is to have new regulatory oversight powers, there is no need to create competing, costly and complex alternative mechanisms via the courts. The Department for Education’s revised impact assessment, at page 24, laughably and ludicrously pretends that creating a new statutory tort will cost nobody anything ever. In the real world, Clause 4, as currently drafted, will ensnare our universities in vexatious, partisan and pointless litigation for years to come. At a time when universities’ real-terms tuition funding is being so heavily squeezed, every extra pound they have to spend on lawyers is a pound less for students. As we heard earlier, at a time when the courts in this country are already overwhelmed—with thousands of rape cases, violent crimes and civil claims waiting years to be heard—it makes no sense to divert scarce judicial resources to second-guessing both the Office for Students and universities themselves.
In summary, my view is that the Bill is going to need thoughtful and sensitive amendment to avoid doing more harm than good.
Lord Desai (Non-Afl)
My Lords, I must apologise for going in and out of the Chamber while other noble Lords were speaking; I had not timetabled for all the business that happened between Oral Questions and the start of this debate.
I will first say that I happen to be a martyr in this struggle for academic freedom and freedom of speech. I was a lecturer at LSE in the academic year 1968-69, when at least two of my colleagues got sacked. Do not for a moment believe that we always had academic freedom in this country; nor should we believe that there is academic freedom in the United States, despite the first amendment and all that. The teacher who supervised me—whom I shall not name—had to leave the university overnight because of McCarthyism. He had to come to Oxford for shelter for a few years before he could go back to America. He was told, “Just leave the country and don’t ask any questions before you get called by the state legislature for your views.” He was an econometrician and a mathematical person; he was not even like me, someone with mixed thoughts. We must always ask for some protection.
Obviously, when you are old, you do not like what the young are doing; you think they are completely out of kilter and should be stopped from doing whatever they are doing. Notwithstanding that, I feel that there is a problem with academic freedom. From what I read in the newspapers, there is a problem with cancel culture. This clearly includes the idea that, if you discuss issues of gender or sex, there are bars to discussing those any further. It happened to me: I shall not name the person who stopped me, but when I was discussing International Women’s Day in a debate in your Lordships’ House and tried to make a distinction between people who are born women and those who have chosen to be women, someone immediately got up and said, “Stop this now; don’t go any further. You’re not allowed to go any further.” I thought that was all right and sat down. It did not really matter; I was not saying anything profoundly original.
I think there is a climate where there are certain topics which cannot be discussed. It used to be the case, again in the 1960s, with a man called Professor Eysenck who used to teach somewhere in south London that whenever he appeared at the LSE the most left-wing of the students used to want to prevent him from speaking. I was one of the few people saying: “Let him speak. Speaking does no harm to anybody. He is just expressing an opinion.”
The whole point is that people think speaking causes harm and speaking itself is an offence. This has happened with JK Rowling and the woman at Sussex who was a professor and had to leave.
I think there is a problem. Now, the question really is: does this Bill solve it or does it create other problems? I think that is a matter of detail; it is not a matter of principle. Even if it was true that academic freedom was beautifully protected and everything was fine, it would still not do any harm to have a law passed.
The question to examine is not whether the Bill is necessary but whether we can improve it so that it does more good than harm. It is our duty as the elderly House which has lots of talent in various ways: the people here who run universities, who have been to universities, who are free-thinking people. Let us get together and construct a solution to this problem which does as little harm as possible and as much good as possible.
I am somewhat worried about this thing about universities and foreign money. It almost looks to me like xenophobia, as if all foreign money is suspect and foreigners are not like us; therefore, they are not good enough. If they are giving money, why are they giving it?
I remember I had tutees from China in the great days of Mao. They came and I was able to subvert them. I thought that it was very good that they were there because I was able to tell them how they could think in a way independent of the way they were taught to think. I do not know what happened to them later on.
The fact that people from foreign countries with dubious prospects come to our universities is no problem. Our task is to make them think better, to think freely. Let us make quite sure that the universities satisfy the requirement of economic freedom and protect freedom of speech but, beyond that, let us not interfere too much and ask, “Why did you admit this man from Russia?” We normally give them peerages, but that is not always the right thing to do.
Our task is to make quite sure that our universities are safe to do what they want to do and people do not have to leave or resign or be blackballed just because they have a view which a noisy minority may not like. It is a Bill which we ought to improve and let us go ahead and improve it.
Viscount Eccles (Con)
My Lords, in following the noble Lord, Lord Desai, I agree with him that the Bill is attempting to deal with very clear problems, but I am not sure it is dealing with them as a matter of detail. I think it also treads on the ground of principles. In following the noble Lord, Lord Desai, I am very conscious of the speech from the noble Lord, Lord Stevens, which I thought was an extremely good exposition of the position.
My question at this late stage in the debate in thinking about whether the Bill will improve the situation for freedom of speech is to wonder about the present regime. It depends predominantly on, I think, Section 43 of the 1986 Act and, of course, on the provisions of the 2017 Act, which set out the OfS.
It is interesting to look at the general duties in Section 2 of the 2017 Act. The first one is
“the need to protect the institutional autonomy of English higher education providers”.
I suppose that we agree with that.
I am not absolutely certain that every provider of higher education quite appreciates the importance of the word “autonomy”. I have a feeling that some providers, in their evidence that led to the Bill, are looking for some shelter or some cover, and my concern is not to give them that shelter or cover, and not to give up on the general duty to protect institutional autonomy, because it seems to me that, for a functioning democracy to work well, it is extremely important that we have autonomous institutions between Parliament and the people. I am not at all clear to what extent it is part of Parliament’s duty or, indeed, in Parliament’s interests, to get directly involved in trying to solve some of the problems that have been articulated this evening.
Indeed, Section 2(8)(a) of the 2017 Act, under “General duties”, which goes somewhat beyond the original list of eight duties, says that the OfS must have regard to
“the freedom of … providers … to conduct their day to day management in an effective and competent way.”
The freedom and indeed the duty to manage day-to-day affairs goes back a long way in our post-war history. It goes back, in fact, to Herbert Morrison and his control, on behalf of Attlee, of the nationalisation programme, where the distinctiveness of day-to-day management was set up and was extremely important to all of us who dealt with those institutions subsequently: on the whole, it worked extremely well. This leads me to say that Parliament should be very careful about eroding that freedom to conduct day-to-day management.
So, in thinking about these problems and thinking about the Bill, which is after all a big insertion into existing legislation—if and when it becomes an Act, it is not actually going to be a separate Act; it is going to be an insertion into the existing Act—we should be very conscious of the fact that it may be that this is not really a matter for Parliament when it comes to how we are going to deal with the problems of today and preserve the freedom of speech. I think we should have one more big effort to say to the higher education providers, “This matter is really up to you. There is sufficient legislation to enable you to carry out these duties, and we see it as being a preferable way of conducting business only to do those things that, after suitable consultation and pre-legislative scrutiny, we agree mutually should be done, rather than that anything is imposed upon you because we have identified a problem and, in our search for votes, we want to put something to Parliament without sufficient care and consideration.”
Lord Moore of Etchingham (Non-Afl)
My Lords, like many noble Lords, and indeed like the noble Viscount, Lord Eccles, who has just spoken—my instincts are as he expressed—I have a certain prejudice against this Bill. That is how I originally approached this matter. I felt that free speech is so deep-rooted in the life of our universities that it needs no legal protection. I feared that statutory intervention in this area could prove cack-handed and, indeed, counterproductive. The noble Lord, Lord Willetts, reinforced that with his point about the online harms Bill: the contrast between that and the freedom of speech Bill seemed to be a very fine example of that doctrine of cakeism for which our Prime Minister is known—having your cake and eating it; doing two opposite things at once.
I have thought about this quite a lot, and I have come to think differently and to feel more strongly in favour of the Bill, for two reasons. The first is a matter of historical fact. We need to recognise that even our most ancient universities have not invariably upheld free speech. There are innumerable examples of this, but one that strikes me is that 150 years ago, roughly speaking, John Henry Newman, the future Cardinal Newman, famously converted to Rome. That is a very important event in the history of Christianity, but what is not remembered is that one of things he had to do when he did that was to resign his fellowship of Oriel College, Oxford. At that time, one could not say anything that denied Anglican beliefs if one worked at the University of Oxford. That is not an incredibly long time ago, so the freedom of speech that we hold so dear is actually something that really came about only in the late 19th century in our universities. By the same token, if it came about quite late, it could also go away quite easily: I do not think freedom of speech is necessarily as deeply ingrained as we might imagine.
But my second and more urgent reason for coming round to this Bill derives from my recent study of what has been happening in Cambridge. I do think that it is important to go through in some detail what actually is happening in universities in order to understand this. I should explain that Cambridge—I do not know if this counts as declaring an interest—is my own university, and many members of my family have been there. Indeed, my great, great, great aunt, Barbara Leigh Smith Bodichon, was the co-founder of the first women’s college, Girton. I love the place dearly, but I must say I have become alarmed about it.
More than two years ago, through a bit of journalistic research, I found out that Jesus College’s China Centre, far from providing academic study of that great nation, was pumping out what amounted to Xi Jinping propaganda. Its website used his own slogan “national rejuvenation” to praise his work. It gradually emerged as I started to ask more questions that the China Centre was financed by Chinese regime money and never invited critics of the Chinese Communist Party on to its platform. By this time, Covid was spreading from China throughout the world, but the China Centre had nothing to say. Had its silence, I wondered, been bought? I think perhaps it had—an astonishing thing that it could have happened in a great university. I must say I am glad that new Section 69D, I think it is, in this Bill—though I understand the worries of the noble Lord, Lord Johnson, about the detail of it—will make sure that there is provision so that we can understand if money is coming from foreign regimes. That is very important, particularly in the case of China.
I further discovered that this engagement with a communist regime was not the frolic of one college but was strongly backed by Cambridge’s vice-chancellor, Professor Stephen Toope, who had himself spoken in Beijing about his admiration for President Xi’s polices. I found that all my inquiries about these matters were fiercely resisted by the university and college authorities, I have never to this day been allowed to interview or speak to the director of the China Centre, Professor Nolan.
So it was in this context that I became interested in the universities’ current attitude to free speech. In 2019, the controversial conservative thinker Dr Jordan Peterson had had the offer of a visiting fellowship withdrawn because it was said his views might upset students. But on the other hand, Dr Priyamvada Gopal, a fellow of Churchill College, was very differently treated. After she was criticised online for tweeting the words “White Lives Don’t Matter”, she was immediately made a professor. Not long after that, in December 2020, Professor Toope promulgated a new definition of free speech which he wanted the university to adopt. It insisted that freedom of speech must be qualified by the need to be “respectful” of the opinions and “the diverse identity” of others. Freedom of speech was no good, he said, if people were
“made to feel personally attacked”.
Critics of Professor Toope’s approach did not, of course, support personal attacks, but they did point out that if being personally attacked was to be defined by the feelings of the alleged victim, then the effect would be to give any objector a veto on free speech. Despite backing for the Toope definition from the university establishment, the dons, led by Professor Arif Ahmed of Caius College, defeated it in a proportion of four to one, and the word “respect” in the Toope definition was replaced by “tolerate”, which is exactly right.
Now if that had been the end of it, I might have conceivably been voting “Not content” tonight, because self-correction would have prevailed without the need of law, but I was struck by what happened next. Professor Toope apparently accepted the revised definition, but six months later the university suddenly announced what it called a new reporting tool. This provided for the anonymous denunciation of those accused of “racism, discrimination, and microaggressions”. Its definition of racism included—
“a system of advantage that sets whiteness as the norm … and promoting (implicitly or explicitly) being white.”
If racism and whiteness were to be equated, some dons realised, no white person could ever be guaranteed freedom of speech: any exercise of that right could, by definition, be ruled racist. There was a fearful row about it and the Cambridge authorities muttered about how a template from other universities had somehow entered “certain ancillary material” into the system, and the reporting tool was withdrawn. However, in November, a Cambridge college—Downing—tried yet again, criticising “whiteness” and seeking to police not only conduct but beliefs. This document was slightly modified under protest but not withdrawn.
As the noble Baroness, Lady Fox, mentioned, this month, Cambridge University’s HR department put out what it calls a “mutual respect policy”. Although it insists that it contains nothing contrary to freedom of speech, it provides for mandatory training courses in which the concept of “respect” can be suborned to enforce or suppress certain opinions. I am afraid that, in many workplaces, HR is now becoming a politicised means of impeding free speech rather than caring for the needs of employees. I have taken your Lordships through this sequence because it shows a pattern to be found not only in Cambridge but across higher education, using co-ordinated materials and similar ideology.
Before the end of the last century, the concept of institutional racism was officially recognised. Today, I fear that a culture of institutional repression has grown up, most severe in the place where it should be least expected: our universities. It rarely attacks free speech directly but that is its intended effect. It exploits our proper concern to achieve the fair treatment of individuals —especially ethnic minority individuals—as cover for its purposes. I have witnessed how the leadership even of a university as great as Cambridge has allowed this to happen. I feel that Parliament is well justified in stepping in to arrest this repressive trend before it is too late, and I therefore support the Bill.
Lord Strathcarron (Con)
My Lords, I declare an interest as a publisher, often of higher education academic titles, which increasingly are digital-only and therefore easier to take down or cancel than physical books. I will come on to the relevance of that in a moment. Luckily for us all, as I am the last seven-minute speaker, a lot of the points I wanted to make have been expressed very eloquently by the noble Lord, Lord Willetts, and the noble Baroness, Lady Fox of Buckley, so this is a very shortened version of my speech.
Although any encouragement of free speech is welcome, there is an element here of the Government giving free speech with one hand and taking it away with the other. For example, an academic may now be able to lecture on a controversial subject—say, genetic or, heaven help us, gender politics or identity, all of which would come under legal free speech. But if that professor, one of his or her students or the institution posted that online and somebody out there who read it suffered hurt feelings, as they are bound to, and quickly organised a Twitter mob, which is not difficult to do, the Online Safety Bill would classify the content as “legal but harmful”—what a minefield those three words are—and outsource censorship of it to Silicon Valley AI bots, in exactly the same way as the CCP outsources its censorship of WeChat and Weibo, the Chinese equivalents.
In Committee, I hope we will be able to future-proof the good parts of the Higher Education (Freedom of Speech) Bill from the bad parts of the Online Safety Bill.
Lord Storey (LD)
My Lords, this debate started with the noble Earl, Lord Howe, talking to us about the importance of free speech at our universities; he used the word “discourse”. He told us briefly what the Bill was about—first, putting further duties on higher education, which would be done by a code of practice. The Government are very good at developing codes of practice; they are just not very good at following them. I hope that if this code of practice appears, the Government will make sure that it is followed.
The Minister also told us that there would be a director of free speech. I wonder whether the former editor of the Daily Mail will be pushed into this job, or whether the position will be filled in a proper way.
Every single person I have listened to in this Chamber has rightly said how important free speech is and has stressed the importance of free speech in our universities and colleges. Quite a number of noble Lords have referenced Professor Kathleen Stock. I have to say that the way the University of Sussex handled that matter meant that it was not the University of Sussex’s finest hour. However, very few Members have mentioned all the other people who have been shouted down, abused, insulted and, in some cases, lost their jobs—through the institution called social media.
In a liberal democracy, citizens have, thank goodness, the right to speak their minds on the great and small issues of the day. Whether that is on a soapbox at Hyde Park Corner or in a lecture theatre in a university, the hallmark of our society is freedom of speech. Fundamentally, it is the right that makes our universities among the best in the world. We must remember, however, that with this great freedom comes great responsibility to uphold the law of the land. You can speak your mind on the most controversial issues, but allowing your argument to devolve into, for example, racism or xenophobia, is patently unacceptable and so it is also unlawful for individuals or organisations to hide behind freedom of speech while inciting hatred and violence. Speech has its boundaries. Protecting the human rights of some individuals should not entail infringing the rights of others.
There will be occasions when universities judge that in the interests of the safety and well-being of their collegiate body it is not advisable for a particular speaker to lecture on campus as their presence may either dangerously inflame passions or otherwise threaten students. It is a difficult decision to make, but it is a power that Governments retain when they decide to refuse entry permits for certain overseas visitors who are invited to speak at events; likewise, it is a decision that must remain the prerogative of individual universities, which have a duty of care and well-being for all their students. I fear that if passed, the Bill will strip those institutions of this ability to make those important decisions on behalf of their students’ safety and will subject universities to unending and needless lawsuits.
In truth, the Bill is just not needed, as my noble friend Lady Garden said. We have heard a lot of noise from the Government about how free speech is being curtailed on university campuses, speakers are being no-platformed and students are apparently unable to speak their minds. However, the Office for Students has found no evidence of free speech being systematically suppressed on campuses. Further, of all the speaker requests made to universities from 2019 to 2020, only 0.21%—I stress that—were rejected. Could the Minister tell me where is this “epidemic of suppression” the Government have been droning on about? Why are we spending hours on this legislation, subjecting university authorities to a potential landslide of civil suits and rendering universities less able to safeguard their students, all to rectify a problem that, if it exists, is very minor—0.21%. Is it really an issue?
The Bill sounds like a dog whistle for right-wingers who feel that universities are hothouses for left-wing thought and action. They are the very same right-wingers who shout “foul” when critics take aim at their ideas, be it the British Council, as my noble friend Lord Wallace said, or the BBC et cetera. The Government should not be entertaining this group of people at all, not least with a Bill such as this which opens up a Pandora’s box for our already stressed universities.
Those same stressed, and now threatened, universities are on the cutting edge of research, often doing world-leading work in conjunction with our international partners. It is vital this work continues, so I welcome the Bill’s inclusion of new, easier reporting requirements that will allow more seamless research agreements between our universities and our most trusted friends around the world. But the Bill could go further. We should also raise the reporting threshold for such agreements, so that small partnerships with other friendly nations are not needlessly held up by red tape.
Like the noble Lords, Lord Johnson of Marylebone and Lord Stevens, I welcome the addition to the Bill of countries exempt from the before-mentioned reporting standards. This will ensure that research partnerships with our most trusted allies will be unencumbered by the regulatory friction that can so often stall the best of agreements. Is the Minister worried that enforcing reporting requirements on non-exempt countries might have a chilling effect on foreign investment in our universities? I should be very appreciative if he could meet me and other concerned Peers at a later date to discuss this issue.
In closing, the Bill does more harm than good for our nation’s most important centres of education. Far from encouraging unfettered speech, I think we all need to recognise that language is a powerful weapon, and we should all be aware of the harm it can cause. We live in an age when we are, I hope, more aware of people’s feelings and of how words can affect people’s well-being and mental health. Protecting hurtful speech in the way the Bill does is not conducive to a more understanding society.
Lord Collins of Highbury (Lab)
My Lords, I was not going to declare an interest until I heard the contribution from the noble Lord, Lord Cormack, which reminded me that I too had been a visiting parliamentary fellow at St Anthony’s, which I enjoyed very much. I was a joint fellow with a Conservative Peer and we planned a schedule of lectures with competing arguments, so I understand the value of challenging thought and ideas—it is absolutely what makes for progress.
As we heard in the excellent introductory speech from the noble Lord, Lord Wallace, the Bill has had a fragmented and bumpy ride through Parliament. Not many Bills would be introduced in May 2021, and complete their Committee stage in September of that year, and then finally get to Report and final stages on 13 June this year. What a long ride it has had.
The Bill is primarily searching for a problem. Sadly, my noble friend Lord Blunkett could not be with us today, but last week he put it to me that it is all about gesture politics. He said it is “Putting up an Aunt Sally that doesn’t really exist and knocking it down again”. What is the evidence? We have heard views about that. The report of the Joint Committee on Human Rights into free speech at universities in 2018 found that there was no major crisis of free speech on campus. As the noble Lord, Lord Storey, highlighted, the Office for Students said that 0.21% of invitations were rejected. We have heard a lot about the chilling effect, and it has lots of implications; whether it be for financing, through the number of foreign students, or for the number of grants, I have no doubt that it influences the response of institutions.
The noble Baroness, Lady Stroud, referenced the UCU evidence. What I found really interesting about the UCU briefing on this matter is that, when I was at university, academics talked about tenure guaranteeing freedom of speech and guaranteeing academic freedom. Now when a student goes to university, half their teachers are on short-term contracts and likely to be sacked for all kinds of reasons. If that is not a chilling effect on academic freedom, I do not know what is. Let us make sure that we look at the evidence.
My noble friend Lord Blunkett also said to me that this is a distraction from what really matters to the sector and to students. Three out of four students are currently worried about managing financially, one in four have less than £50 a month to live on after rent and bills, and 5% of students are using food banks. In my opinion, that is the real crisis in our universities. Of course, the challenges faced by students reflect what is going on in wider society. As my noble friend Lady Thornton said in her opening speech, unlike the Conservatives over the years, Labour has always championed free speech. It was a Labour Government who introduced a law guaranteeing freedom of expression.
What have we got here? We have a Bill that has gone through the Commons and that will create a director for freedom of speech and academic freedom on the OfS board, as well as a new OfS registration condition on free speech, strengthening an existing duty known as Section 43. It also introduces a statutory tort, giving private individuals a right to seek redress for loss incurred as a result of a breach of Section 43, and so-called enhanced contractual protections for academics with regard to academic freedom. It is very difficult to see that given the stats which I have just mentioned. The Bill also has the addition of a duty to disclose overseas gifts and contracts affecting freedom of speech—which no doubt has persuaded some noble Lords to support it.
Across the House, throughout this debate, I have heard the serious reservations of noble Lords about the unintended consequences of these proposals. I listened with great interest to the contribution of the noble Baroness, Lady Deech, whom I do not often agree with but on this one I completely agree with her. It is those unintended consequences that we should be most worried about. The Bill reflects a top-down, one-size-fits-all approach, which the noble Viscount, Lord Eccles, referred to. It demonstrates a weakness at the heart of the Government and their misplaced lack of trust in the academic community.
I hope the noble Earl will address the concerns raised in the debate, which are shared not only by noble Lords across the House but by the sector. We need to know how the Bill will interact with existing legislation and other duties which relate to free speech and academic freedom, including, as my noble friend highlighted, the proposals to reform the Human Rights Act. Ministers have claimed that the new statutory tort would be a backstop, but what safeguards will there be to ensure that it does not lead to universities having to defend themselves against vexatious and frivolous claims brought by anti-vaxxers, Holocaust deniers and hate preachers?
We have also heard, from the right reverend Prelate the Bishop of Coventry, about the interaction between the role of the OfS free speech complaints scheme and the director for freedom of speech and academic freedom, and how they will interact with existing ombudsman and, as the noble Baroness, Lady Deech, said, the Office of the Independent Adjudicator for Higher Education. We also believe, on these Benches, that there should be a requirement for the new director for freedom of speech to consider competing freedoms when investigating free speech complaints.
The noble Lord, Lord Johnson, raised overseas donations —a late addition to the Bill. As the noble Lord said, will the Government ensure that duties on overseas funding are targeted with risk-based exemptions and proportionate reporting? What sort of extra duties will be placed on universities? We need to have a proper assessment.
I have no doubt that we will return to these issues in Committee. I repeat my noble friend’s assertion: we will be tabling amendments to ensure that an independent appointments procedure is used for the post of director for freedom of speech, and also to ensure it is not a party-political appointment. I do hope the Minister will respond to her questions, specifically those about the post being advertised, the job description, and the requirements of the person specification for the job, which does not seem to address what we are being told the job is about. Certainly, with a closing date of 13 July, will we see this appointment being made before parliamentary approval?
Labour will also seek to broaden the definition of academic freedom, to include for example, criticism of institutions, conducting research and joining a union—something that I think is fundamental to a free and democratic society—and will also propose, as my noble friend said, a sunset clause to the legislation.
There is one thing I wanted to return to in more detail. If there is a problem—and I have heard from noble Lords and I accept there are issues to address—is this legislation the best way to deal with it? Surely, adopting and promoting best practice in our universities and with academics and teaching staff is the real answer. We have a sector that leads the world, and I understand the view of Universities UK that it is important that additional legislation and duties placed on universities that seek to address the small number of incidents that we have heard described this evening need to be proportionate. I have heard and read that Universities UK has stated its willingness to work with the Government on the Bill to demonstrate their members full and firm commitment to freedom of speech, which I think I have heard from across this House. But what I find most disappointing about the Government’s attitude is they have not really examined the vast array of really good practice. How do we encourage good practice? The Manchester guidelines, the Chicago principles or even Robert French’s independent review of freedom of speech in Australian higher education—to name but three—show countries around the world have similar issues, but the point is how they go about addressing them.
If the Government were really interested in promoting and protecting freedom of speech and academic freedom, they would seek to encourage this approach across the sector, as I think was referred to by the noble Viscount, Lord Eccles. It would be far more effective and would not have the unintended consequences that this proposed legislation would have. Such approaches would go a long way to fostering the healthy culture of debate that we all want on our campuses. We have to understand that, sometimes, institutions and student unions will get it wrong. That is the nature of debates on the parameters of free speech, but it is a small price worth paying for a collective and more consensual approach to protecting freedom of speech on campus.
I have heard about the competing pressure on freedom of speech, safe places and respect. As a student 45 years ago—or maybe longer, I suppose—as a young gay person trying to study in that environment, actually, disrespect did turn into hate speech, and hate speech turned into violence. Do not think of words as simply a painful experience, if they encourage violence. That is what we experienced with Section 28—words that said that you cannot preach something in schools because it is a danger to children. That was in Section 28, and it is what we must guard against. Respect is about respecting all; it is not just about a difference of opinion. I want debate but I also want to protect individuals.
Earl Howe (Con)
My Lords, this has been a memorably good debate. I thank all speakers for the knowledge and personal insights that they brought to it. I am grateful particularly to those noble Lords who felt able to give the Bill a broad welcome and I look forward to their constructive support as it proceeds.
As we heard, by no means all who have spoken were so positive. Some, such as the noble Lords, Lord Wallace of Saltaire and Lord Collins, the noble Baronesses, Lady Thornton and Lady Royall, and my noble friend Lord Willetts are clearly very troubled by the Bill. So it is perhaps appropriate for me to start by addressing some of the deeper-rooted concerns that were expressed.
From the noble Lords, Lord Wallace and Lord Collins, the noble Baroness, Lady Garden, and others, we heard genuine concern that there is no substantive problem to be addressed and that any chilling effect or cases of no-platforming are being exaggerated, possibly even for political reasons. I understand these concerns, but let me try to allay them. The reality is that one needs look no further than the available data and information from the higher education sector itself to see that there is a problem.
In October last year, 200 academics wrote to the Times to report that they had received death threats and abuse simply for expressing views. They did not feel supported by their universities. One of those academics had expressed an opinion about the need to protect women-only spaces, such as refuges, prisons and hospital wards. However, this brought her into conflict with students and staff, who saw her opinions as transphobic. It also caused her to be compared to eugenicists and white supremacists, in addition to being called a bigot. This is just one case among those 200 staff who wrote to the Times.
Several studies, surveys and reports highlight instances in which freedom of speech and academic freedom are being curtailed in the higher education sector. A 2019 King’s College London report showed that 26% of students think violence can be justified in preventing someone espousing hateful views. A similar proportion reported not feeling free to express their views at university for fear of disagreeing with their peers.
There are also high-profile cases in which academics have been harassed for expressing perfectly lawful views. The noble Lord, Lord Macdonald, cited the case of Professor Kathleen Stock, who resigned from her post at the University of Sussex due to fears over her personal safety after harassment from students. There are many similar examples. Professor Rosa Freedman’s door at the University of Reading was drenched in urine. At Oxford a left-wing feminist academic, Selina Todd, had to be given security guards after threats to her safety. Raquel Rosario Sánchez, a PhD student at the University of Bristol, was subjected to a campaign of intimidation by trans activists after agreeing to chair an event, held by Woman’s Place UK, called A Woman’s Place is Speaking Out. I could go on.
There is without doubt a problem with the suppression of free speech on university campuses. I want to be very clear: it is not confined to either the right or the left of political opinion. This leads me on to my next point, which is to address concerns that the introduction of the Bill is politically motivated. Students and academics from across the political spectrum have been impacted by the censure of free speech on campuses. From those on the left to those on the right, there is a real fear about airing what might be controversial opinions. The Bill is designed to protect free speech on a diverse range of topics, including minority ones. Freedom of speech and academic freedom are fundamental principles in higher education. This is not about promoting and protecting one political view over another.
I will clarify a further point, prompted by the noble Baronesses, Lady D’Souza and Lady Garden, and mentioned by the noble Baroness, Lady Fox. The Bill is not just about eradicating no platform. It is about creating a wider culture on campus, such that everyone feels able to express their views and challenge those of others, even when those views are unpopular or controversial, and to do so without fear of negative consequences. Everyone needs to be aware that when things do not go as they should, there is a meaningful route of redress for individuals.
The noble Baroness, Lady D’Souza, followed that up by asking: does this not need cultural change, not just legislation? Absolutely, yes. This needs cultural change, and we welcome initiatives by universities, academics and students to do all they can to move in that direction. But as we have seen historically on issues such as gender equality, race discrimination and human rights, cultural change occurs more readily when backed by appropriate legislation.
I turn now to an issue that has given rise to a number of expressions of concern. I listened carefully to noble Lords such as the right reverend Prelate the Bishop of Coventry, my noble friend Lord Willetts and the noble Baroness, Lady Shafik, who are worried that the creation of a new tort, as proposed in Clause 4, may lead unintentionally to a deluge of court cases initiated by vexatious, publicity-seeking pressure groups. Nobody, least of all the Government, wishes to see universities burdened in this way. It may be helpful if I explain why I do not think the scenario that some noble Lords envisage is at all likely.
To succeed with a civil claim, a claimant would need to be able to show that a provider, college or student union owes them a duty of care; the category of those potentially owed a duty of care under the Bill is narrowly defined. They would then need to point to a genuine and material loss they had suffered as a result of a breach of the freedom of speech duties. Those tests are not a low bar, and any claimant who pursued their case vexatiously would certainly struggle to prove it. In the background, of course, a vexatious claimant would be assuming a considerable financial risk, not only in the form of their own legal costs but by being potentially liable for those of the defendant. That is why we believe the tort will be resorted to very much as a backstop. The availability of the free complaints scheme through the Office for Students, which will provide a much easier and more straightforward route to redress, should make litigation unnecessary and therefore unlikely in the vast majority of circumstances.
Setting aside for a moment the concerns around the tort, the noble Lords, Lord Wallace and Lord Storey, and the noble Baroness, Lady Royall, expressed a worry that the wider provisions of the Bill would impact on higher education institutions in terms of administrative burdens. I am the first to agree that unnecessary bureaucracy directly impacts on how well higher education providers can do their job; every pound spent on unnecessary bureaucracy is a pound less that is being spent on teaching and research. However, I am also convinced that if straightforward measures can be put in place to protect our core UK values, it is right and necessary that we do so. We have ensured that their scope is proportionate to the risk. To pick up a point made by the right reverend Prelate, we sincerely hope that providers and student unions will embrace the mission to generate rigorous and healthy debate on campus, understanding how vital it is to academia and our country’s democracy.
I turn to the proposal in the Bill to create a new post in the Office for Students: the director for freedom of speech and academic freedom. The noble Baronesses, Lady Thornton and Lady Royall, and the noble Lords, Lord Storey, Lord Wallace and Lord Collins, asked several questions about the appointment of this individual. As has been mentioned, the role was advertised publicly from 13 June 2022. To allay the doubts expressed on that score by the noble Baroness, Lady Thornton, and the noble Lord, Lord Collins, I can reassure them that the Government can undertake preparatory actions in anticipation of full implementation following Royal Assent.
Worries were expressed about bias in the appointments process. Freedom of speech and academic freedom are fundamental principles in higher education, not the preserve of one particular political view. The director for freedom of speech and academic freedom will be appointed in the same way that other members of the OfS are appointed, under the Higher Education and Research Act 2017 by the Secretary of State, and this will be done in the usual way in accordance with the public appointments process.
My noble friend Lord Willetts, who I am sorry to see is not in his place, asked why we need the regulatory route as well as the tort. As he is not here, I will write to him about that and copy the answer to other noble Lords.
The noble Baroness, Lady Royall, argued that the Bill establishes the possibility of simultaneous penalties. It is already possible for there to be a complaint through the Office of the Independent Adjudicator for Higher Education and regulatory action at the same time. The Bill does not change that. These actions perform different functions, with the complaint having the potential to provide the individual with redress but with regulation intended to ensure that provider behaviour as a whole meets its registration conditions using a proportionate approach based on risk.
The noble Baroness, Lady Deech, asked what the difference will be between the Office for Students complaints scheme and the complaints scheme operated by the OIA. While the Office of the Independent Adjudicator for Higher Education will remain the body for general student complaints about providers, the OfS scheme will focus exclusively on freedom of speech and academic freedom. The OfS will offer a complaints scheme for staff and visiting speakers who cannot complain to the OIA, as well as for complaints about student unions also not covered by the OIA scheme. All those who consider that they have suffered because of a breach of the new duties will have access to the OfS scheme, including students.
On a point raised by the noble Baroness, Lady Thornton, and the noble Lord, Lord Stevens, I make it clear that it will be for the OfS to make decisions, not the director personally. It is not unusual for a regulator to be able to consider legal matters when making decisions; for example, the Charity Commission already does this in relation to charity law. It is also common practice for out-of-court redress schemes to consider legal issues when making decisions around a recommendation of redress. If alternative dispute resolution bodies could not consider legal issues, they would not be able to fulfil their functions. For example, the Office of the Independent Adjudicator for Higher Education does this.
Returning to the issue of political bias—I draw this to the attention of the noble Lord, Lord Wallace—it is important to note that the chilling effect on free speech appears to increase when political views are expressed. Studies confirm that this affects people from across the political spectrum. Policy Exchange polling shows that 15% of those identifying as centre or left are choosing to self-censor. The Government are clear that freedom of speech is not about promoting and protecting one political view over another.
The noble Lord, Lord Sikka, asked how providers are supposed to know what speech is unlawful. The Bill does not change the legal position in this country on what speech is lawful and what is unlawful. It will be for providers, constituent colleges and student unions to determine the lawfulness of speech by considering it in the light of the provisions of criminal law, such as the Public Order Act 1986 and legislation such as the Equality Act 2010. That is no different from the process that they must go through already.
My noble friend Lord Willetts asked whether the Bill was designed to protect all legal speech. Once again, as he is not here, I will write to him about that and copy my answer to other noble Lords. However, I say to the noble Lord, Lord Stevens, that there is nothing in the Bill that encourages higher education providers or student unions to encourage baseless and harmful claims or bad science on campus.
Certain noble Lords suggested that the Government were presenting a confused picture to universities on such matters as anti-Semitism. The example of the IHRA definition of anti-Semitism, also referred to by the noble Baroness, Lady Deech, was mentioned. First, it is up to providers as independent and autonomous organisations to decide on whether to adopt the International Holocaust Remembrance Alliance definition of anti-Semitism. Secondly, the Government do not see a conflict between protecting freedom of speech and adopting the IHRA definition. I believe the Bill strengthens protections for freedom of speech likely to support Jewish students and staff, who, on a number of occasions, have had their speech shut down by others. However, the Government recognise that the adoption of the definition is necessary but not sufficient, and there is more that providers need to do to make sure that instances of anti-Semitism on campus are not tolerated.
I shall comment briefly on the Prevent duty, mentioned by a number of noble Lords, including the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Macdonald. The Government are clear that the Prevent duty should not be used to suppress freedom of speech. The duty requires providers and constituent colleges, when exercising their functions, to have due regard to the need to prevent people being drawn into terrorism. The legislation imposing the Prevent duty in relation to higher education specifically requires that providers must have particular regard to the duty to ensure freedom of speech and to the importance of academic freedom.
A number of speakers, including the noble Baroness, Lady Deech, referred to the vexed issue of Holocaust denial. I wish to be very clear on this point: any attempt to deny the scale or occurrence of the Holocaust is morally reprehensible and has no basis in fact. In many cases, those who deny the Holocaust also have links to neo-Nazi extremism, anti-Semitic violence and intimidation. The European Court of Human Rights has held that Holocaust denial is not protected speech under Article 10 of the European Convention on Human Rights, and our legislation does not change that. For the avoidance of any doubt, this legislation will not protect those who deny the Holocaust.
The noble Baroness, Lady Chakrabarti, asked about the Bill of Rights and specifically how that Bill and its amendments to Section 12 of the Human Rights Act will affect this Bill. The proposals to strengthen freedom of expression through reforms to the Human Rights Act complement the creation of this tort, which is seeking to give greater protection to free speech as well. If anything, the MoJ proposals only bolster the requirement that universities take steps to ensure free speech.
As a general comment, and in answer to those who have asked how the new duty fits with other legal duties a provider, college or student union may have under the Equality Act or criminal law, the duty to take “reasonably practicable” steps means that providers, colleges and student unions can take account of all their legal duties on a case-by-case basis. If another legal duty requires or gives rise to a certain action, it would not be “reasonably practicable” to override that.
My noble friend Lord Strathcarron was worried about the potential clash between this Bill and the Online Safety Bill. It is perhaps a debate for Committee, but I shall seek to persuade my noble friend that there is no conflict between that Bill and the one before us.
The noble Baroness, Lady Royall, raised the issue of overseas funding and asked why the OfS will ask for information about this pre-emptively. We are ensuring that the scope of the new reporting requirement on overseas funding is proportionate to the risk. We recognise the importance of protecting commercial sensitivities so that the sector does not fall behind its competitors in the rest of the world. We must ensure that the Office for Students has the information at its disposal to enable it to better understand the possible extent of influence from a foreign source at a country level. The reasons for that were well articulated by my noble friend Lord Moore.
My noble friend Lord Johnson, the noble Baroness, Lady Shafik, and the noble Lord, Lord Storey, questioned the level of the proposed threshold for reporting the receipt of overseas funds by a university and argued that the threshold should be higher than £75,000, which is the currently intended level. For now, I have listened carefully to the points they made. The Government have struck what they consider to be the right balance, but this is a matter to be determined in regulations, so there will be ample time to discuss it further.
In answer to the noble Baroness, Lady Chakrabarti, who asked what criteria will determine what overseas funding is acceptable, we continue to welcome foreign investment and donations to higher education as they are a key part of supporting innovation and development within our universities. Through the Bill, we are simply trying to implement measures that help to safeguard our world-leading higher education sector from those who may wish to interfere with our values. I would be happy to meet the noble Lord, Lord Storey, and other noble Lords to discuss these issues.
Time is now against me, as I have just been rightly reminded. I shall write to noble Lords whose questions I have not had time to address, including my noble friend Lord Eccles and the noble Baroness, Lady Hoey, who asked me why the Bill does not cover the rest of the UK. I thank all speakers for their contributions once again. I hope that my responses provided some useful clarification in response to the thoughtful points and questions that noble Lords raised.
Freedom of speech in our universities is under threat: unfortunately, a growing trend aims to prevent anyone from airing ideas that some groups may disagree with or find offensive, and we cannot ignore that. Hence, today, I have set out how the Bill will ensure that freedom of speech is both protected and promoted in higher education. It will strengthen existing freedom of speech duties and directly address gaps in the existing law, introducing clear consequences for breaches of the duties. Therefore, I take pleasure in commending the Bill to the House.
Higher Education (Freedom of Speech) Bill
Monday 31st October 2022
(2 years, 1 month ago)
Grand CommitteeRead Full debate Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 30-II Second marshalled list for Grand Committee - (31 Oct 2022)
Baroness Smith of Newnham
Member’s explanatory statement
This amendment seeks to ensure that the definition of freedom of speech in section A1 is identical to that within A3.
Baroness Smith of Newnham (LD)
My Lords, I rise to speak to Amendment 1 and other amendments in the name of my noble friend Lord Wallace of Saltaire, with his permission, as he cannot be with us in Committee today.
Quite often in Committee, the first amendment can seem a little trite. Sometimes it inserts “and” or deletes a semi-colon, because the way we have to table amendments is sometimes a little esoteric. On this occasion, the first amendment fits with the wide range of amendments that form this group—namely, in Amendment 1, my noble friend suggests that after “speech” we should insert “within the law”. This goes with a whole set of amendments that, in many ways, are trying to ensure that the variety of issues within this legislation, if it is necessary and has to pass—like my noble friend, I query its necessity—are dealt with. The first amendment seeks to make sure that we are clear about what we are looking at in the concept of freedom of speech. Reaffirming that within the law is clearly important.
My noble friend also tabled a range of amendments to insert or withdraw “beliefs”. He says that they are self-evident but, in particular, he wants the Committee to think about what His Majesty’s Government mean by “beliefs” in the context of this legislation, because the problem that this legislation purports to resolve is about freedom of speech in higher education, but that concept is not always well-defined.
At this point, I take a moment to declare my interests. As outlined in the register, I am an academic employed by the University of Cambridge, a fellow of Robinson College Cambridge and a non-executive director of the Oxford International Education Group, plus I sit on the odd advisory body of other places of higher education. Therefore, I have a professional interest in the Bill, but I also have an interest in ensuring that any legislation that we pass is absolutely clear. One of the biggest problems for many of us, whether in higher education or other parts of public service, is not necessarily whether the legislation exists but how clear it is and how effectively the people subject to it are going to be able to monitor it—is it clear to everybody? One of the best examples of this was the Licensing Act 2003. When it was introduced, it was full of uncertainty, vagueness and lack of clarity. It took many amendments and much work by local authorities to understand what the Government wanted.
It is important that in this legislation we are clear what is meant by “beliefs” and what the Government’s understanding of “beliefs” is. Also, as Amendment 3 in the name of the noble Lord, Lord Collins of Highbury, points out, we need to be clear what we are talking about in the context of freedom of speech in higher education. Although there are no Liberal Democrat signatories, I have no hesitation in putting forward Liberal Democrat support for Amendments 3 and 11, because both amendments are extremely important to bring clarity. I shall not pretend in Committee to channel my noble friend Lord Wallace; I shall simply move the amendment in his name, support those in the name of the noble Lord, Lord Collins of Highbury, and look forward to hearing the debate at this stage. I beg to move.
Lord Hope of Craighead (CB)
My Lords, I shall speak to Amendment 2, which is in my name and that of the noble Lord, Lord Triesman. The amendment seeks to do two things. First, it seeks to explore what the Government mean when they refer to
“freedom of speech within the law”
in new Section A1(2). Secondly, it seeks to avoid a possible inconsistency between the freedom of speech that the Bill seeks to protect and promote and the right to free expression that is protected by Article 10 of the European Convention on Human Rights.
There is a bit of history behind this amendment. I drafted it just after the Bill received its Second Reading in the summer. At that time, the Prime Minister was Boris Johnson, the Secretary of State for Justice was Dominic Raab and the Bill of Rights had just been introduced, which I think it is right to say he particularly favoured. The point that concerned me at that time was two Bills dealing with freedom of expression or the right to freedom of speech proceeding together without any connection between the two. What happened, as we all know, is that there was a change of Prime Minister. When Liz Truss became Prime Minister, Dominic Raab was no longer the Secretary of State for Justice and it was made known that the Bill of Rights was no longer to be proceeded with. However, there has been another change: we have a new Prime Minister, Dominic Raab has come back in again as Secretary of State for Justice and it is possible that the Bill of Rights may be resurrected and create the problem that I was anticipating in the summer. I stress that one of my motivations behind this amendment was to be sure that both bits of legislation, if they are to proceed, are in communication with each other and that, when we use the expressions “freedom of expression” or “freedom of speech”, we are talking about the same thing.
I come back to the point that I mentioned at the beginning: the phrase “within the law” needs some explanation. It seems to assume that the law already tells us what the freedom amounts to. I think that most people—certainly most lawyers—would tend to look to Article 10 of the European Convention on Human Rights as telling us what the freedom amounts to, because it spells it all out and it is suitably qualified for various reasons when you read the second part of Article 10. I should have thought that to build it into this Bill makes good sense. The amendment seeks to explain and give body to the expression “within the law”.
Those are the two reasons: first, to give greater body to the phrase “within the law”, so that everybody understands what it means and to preserve consistency with Article 10, which is part of our law; but also to avoid a possible inconsistency with the Bill of Rights, should it be reintroduced, because it would be unfortunate if that Bill, when it talks about freedom of speech, as it does, should be using a different basis for legislation. I should explain, and I am quoting now, that Clause 4 of the Bill of Rights says:
“When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right.”
It goes on to say:
“In this section ‘the right to freedom of speech’ means the Convention right”.
It then sets that out in full in the way that my amendment does.
My amendment is based on the wording that can be found in Clause 4(2) of the Bill of Rights as it was, and it is the best I can do to bring the two Bills into line. With great respect, I do not think that this amendment does anything to harm this Bill or in any way interfere with the basic principles which the Government are seeking to achieve by promoting this legislation. All I am trying to do is avoid misunderstandings and inconsistencies. With that background, I commend the amendment to the Committee.
Lord Triesman (Lab)
My Lords, I start with my declaration of interests: I still hold academic posts at Cambridge, and I was the general secretary of what was the Association of University Teachers, now UCU—it is a rather different beast these days, but none the less, it was part of my history. It is a privilege to follow the noble and learned Lord, Lord Hope of Craighead. I think the distinction he makes, and the way we could embody consistency between potential pieces of legislation, is very important.
Although Amendment 22 is in a different group, I will make a point now which might mean that it does not have to be repeated later. It is very important to the academic world to know exactly what we as legislators mean by the different terms used. These terms are used very widely in academic life; they always have been and so they should. They were widely defended in academic life as being fundamental to its culture. I would like to believe that they are fundamental to the culture of many other parts of life as well, but they were fundamental to that culture. One of the reasons it is so important to express these concepts in this Bill, and one of the reasons I can understand why the Government have produced it now, is that, sadly, the challenges to freedom of speech and academic freedom have become much more acute and have not been dealt with particularly effectively.
I hark back to the earlier period precisely because the sector itself would have then dealt with these things very firmly and effectively. It was the DNA of the sector. Nobody would have questioned the right of people within the law to espouse views that were unpopular, take sometimes dogmatic positions and engage in every kind of argument under the sun, and, if others wished to try to rebut those arguments, to hear those other arguments in the same spirit. That was—I hope the Committee will forgive me for repeating the point, but it seems so fundamental—the DNA of this sector. I would like to feel that, when the final draft of this Bill appears, it will contain expressions about that which will be instantly recognisable to the people who used to celebrate those values. They will then see this as theirs, not just ours—not just what legislators think is right but what the sector was committed to and always believed was right. The noble and learned Lord, Lord Hope, has done us a great favour in saying that.
I also support wholeheartedly my noble friend Lord Collins’s amendments. I want to make one brief point about the concept of “within the law”. Generally speaking, I would hope that I understand what those words mean, but there are some areas where freedom of expression arises where I am not entirely sure that I do. I want to mention those here, not because I want to restrict people’s freedom of expression but because I do not want us to do undue harm to anybody. I am thinking here of the kind of coverage given in public by some people to the murder of the children at Sandy Hook and the case, which I believe will be reported on “Panorama” this evening—goodness knows how I know, but I have heard this—to do with people making gross allegations about what happened at the Manchester Arena bombing.
Lord Moylan (Con)
My Lords, I will speak to the two amendments in my name in this group, Amendments 13 and 28. In doing so, I am conscious of speaking after the noble and learned Lord, Lord Hope of Craighead, with whom I agree on the matter of principle—a nice easy place for me—but disagree on the response of substance. It always fills me with trepidation to think that I am not on the same page as he is on some things.
I shall address the two amendments in the reverse order and speak to Amendment 28 first. That amendment should have been coupled with a proposal to delete lines 36 to 38 on page 2, which it appears to replicate in some ways; that will be corrected at Report, if we get that far.
The substance of what we are discussing is essentially clear. The noble and learned Lord, Lord Hope of Craighead, has rightly pointed out that the Bill lacks a clear definition of what is meant by free speech, and on that we agree. He proposes that the definition of free speech be tied to the convention right in relation to free expression. My view is that that does not take us far enough. The convention right is, first, subject to the jurisdiction of the European Court of Human Rights, which has a history of narrowing that definition over time and creating more exceptions—for example, for the protection of reputation, and so forth. Because it is one that can be appealed in the European Court of Human Rights, it is likely to be interpreted in a very legalistic way by universities and to lead to a great deal of litigation. As the noble Lord, Lord Triesman, rightly said, universities need to be persuaded to own this as a project and not regard it simply as a further aspect of the legal thicket through which they have to work.
There is also great advantage in having a definition of freedom of speech which is a British tradition and based on British notions of common law: the notion that you are free to express anything which is not specifically prohibited by law. That is a different approach, if I may say so, from the one being advanced by the noble and learned Lord, Lord Hope of Craighead.
Amendment 28 is an attempt to put that approach—the idea that you can say something as long as it is not prohibited by law—into statute. That is the essence of Amendment 28. It contains an exception for Holocaust denial, but otherwise I think it resolves this question of defining freedom of speech in a clear and unambiguous way. I say this without knowing any more than the noble and learned Lord does about the Government’s current intentions in relation to the Human Rights Act, but my definition would future-proof the Bill against any attempt to resile from the European Convention on Human Rights that might come forward in such legislation, if it appears.
I now turn to Amendment 13, which is an attempt to define what is meant by reasonably practicable on the part of universities. Here, as the noble Lord, Lord Triesman, has made clear, drawing on his experience as an academic, there has been a significant change over the years in the attitude of universities towards these tricky and difficult questions. As he says, some years ago, when he was perhaps a younger academic, university authorities themselves were committed to freedom of speech and it was they who would be protecting those who wished to express controversial and difficult appointments from the activist behaviour, riots or mobbish-type behaviour that might seek to close them down. As the noble Lord implied, the situation now is that, very often, the problem arises not simply from the student activists but more from the university authorities. We perhaps need a more directive approach, one that makes clear the burden on university authorities to protect free speech, as we can no longer rely on that innate instinct of theirs to do so.
As I said, Amendment 13 is an attempt to do that. First, it makes it clear that doing nothing is a reasonable activity—so that not intervening in order to close things down is a perfectly reasonable activity—and that there should be a clear obligation of tolerance on universities, allowing them to restrict only speech that harms the functioning of the institution. That is a vague phrase which perhaps could be improved in discussion as we come to Report, but I suggest that that latter category would include anti-social behaviour of abuse and insult, or destructive behaviour or racism. Those things could be taken to harm the functioning of the institution, but they would be narrowly drawn so that, in practice, the university had a legal obligation to defend people’s right to their free speech.
It is, if I may say so, a different approach—a slightly fresh and unusual approach. We are understandably so used to relying on the European convention as the basis of our interpretation of rights in the modern age, but our rights go back to well before the drafting of and our accession to the European Convention on Human Rights. We have a proper and correct, distinctly British approach to rights: the notion that one should be able to say something that is not prohibited by law and free to do so is a much wider notion than that imported in the European convention. I think it is a defensible one, and I think the notion in Amendment 13 of what constitutes reasonably practicable addresses the change in circumstances since the 1986 Act in a way that the noble Lord, Lord Triesman, identified. I believe it makes the fairly vague obligation on universities in that Act much clearer and much more deliverable.
Lord Hunt of Kings Heath (Lab)
My Lords, it is a great pleasure to follow the noble Lord. In this very short but interesting debate we have already seen the problem that the Government are essentially seeking to address—a failure of leadership in many of our universities—through legislation that, given the amendments we have seen today, I suggest will be very hard to implement.
I remain unconvinced that this is the right way to tackle what is undoubtedly a problem in our universities. I first came across this when meeting Professor Kathleen Stock, who was subjected to horrific abuse in her own university for simply saying that your biological sex cannot be changed by feelings of identity, which I think are quite unexceptional and certainly legal remarks. Many other women academics in universities have felt threatened and censored for the simple act of trying to engage in these kinds of debates, particularly in relation to women’s sex-based rights. Unfortunately, many universities have allowed abusive behaviour to go unchallenged.
It seems to me that, at the heart of it, there is a question as to whether, even at this late stage, we can look to universities to put their house in order. I think that that would be a much more appropriate way forward than seeking to implement what I am convinced will be wildly impractical legislation. Already, our very civilised debate over what we mean by free speech suggests that this will be a huge problem when it comes to implementation.
The recent survey by the Higher Education Policy Institute showed a distinct shift in attitude by students, who it says
“have a very different conception of academic freedom and free speech norms than earlier generations”.
It suggests that these may have
“swung too far in one direction, with relatively few students recognising the unavoidable trade-offs involved with ever-greater restrictions on legal free speech.”
HEPI has come up with a list of things that it thinks universities might take forward, which seem very sensible to me. They include:
“reassessing formal procedures, such as existing codes of practice … ensuring consistent good practice, such as balancing controversial speakers with others … giving students improved information on academic norms, including in freshers’ weeks”.
I still think it might be better if the OfS, HEPI and the universities were allowed to work this through together. I suggest to the Minister that, if I were him, I would delay the date on which the Bill came into force to give universities time to try to change the culture and atmosphere within universities. This would be a much more practical and effective way of going forward.
However, if the Government are determined to press ahead, they clearly need to answer a lot of questions about the practical implementation of what they are proposing and the guidance to be given to universities. This is the reason for my Amendment 25. The question is how far intimidatory tactics against people speaking in universities are to be allowed under this legislation. We have seen intimidatory tactics. They can take a range of forms, including open letters demanding that an academic should be sacked for what they have said, vexatious complaints, petitions to publishers demanding that work be withdrawn, campaigns of defamation and smears, demands to prevent an academic being platformed, attempts to prevent events going ahead by threatening trouble if they do, and disrupting events that do go ahead. The targets of these tactics are typically women who believe that sex matters and have the courage to say so.
One possible response to these kinds of attacks is to frame the attempt to silence as itself a form of free speech, but this confuses the right to protest with a right to silence others. Speech that is merely intended to silence the speech of others, far from contributing to knowledge and learning, narrows the scope of the educational sphere. I argue that to frame attempts to silence as equally valid speech ignores the educational purpose of the university.
The amendment would explicitly exclude attempts to silence the speech of others from the scope of the core “secure” duty in the Bill and would require universities to take positive steps to mitigate the effects of those exercising what has been described as the “heckler’s veto” without disproportionately affecting the right to lawful protest. It would also clarify that the use of what I have described as the heckler’s veto to silence legitimate debate and dampen academic freedom on campus is not in itself protected speech.
This is a probing amendment because I want to hear what the Government have to say about our concept of free speech, how far it goes and what is to be done with intimidatory tactics. However, I am still left with the sense that the Bill as it stands is unworkable and will be an absolute nightmare for universities to implement. If only universities had shown leadership in the last few years this would not have been necessary.
Lord Sandhurst (Con)
My Lords, I will speak to Amendment 30. I should first apologise for not speaking at Second Reading. Because of other commitments I could not be there at the beginning and the end, or indeed to speak in the middle.
Amendment 30 seeks to add to the proposed matters to be addressed in the education providers’ code of practice. It would add a new paragraph to new Section A2(2), which would impose an obligation within the code of practice to put in place measures to ensure that politically motivated complaints against academics do not lead to time-consuming investigations. Education providers should have procedures enabling them to dismiss vexatious, frivolous, malicious or politically motivated complaints made against a member of their community—in other words, to snuff them out at the start. It might be that sensible universities will do that anyway, but if it is made part of a mandatory condition of the codes of practice then they will all have to do that, and make certain that they do.
It is plain that there are plenty of academics who hold unfashionable views of one kind or another, and they sometimes bring in unfashionable speakers with minority views. It is also plain from newspaper reports that we operate in a climate of fear, in the sense that academics and students are sometimes afraid for their careers. Without going into any unnecessary detail at this stage, the latest incidents were at Cambridge, where Professor Arif Ahmed, who is professor of philosophy, invited Helen Joyce, who has rather clear views on sex issues. We do not have to go there, but there was a tremendous hullabaloo and his own college, Gonville and Caius, made life very difficult for him.
What might have happened is that there might have been a complaint after the event or at the time. If a summary procedure is open to the university, it would see at once that such a complaint should not go any further but should be snuffed out at the beginning. This amendment is designed simply to provide for that and to encourage universities and other education providers to do things quickly and appropriately. That will help to improve the atmosphere.
Baroness Bennett of Manor Castle (GP)
My Lords, I shall speak to Amendment 36 in my name. I apologise for not speaking at Second Reading. I was then in the acute phase of Covid-19, so I guess noble Lords will all be rather pleased that I was not in the Chamber at that time.
I begin by saying that I believe that this is an unnecessary Bill that is clearly playing politics with the very important issue of how critical and independent thinking happens in our country. I share the view of the University and College Union that there are great threats to academic freedom in our country at the moment. Those threats include the extreme casualisation of many parts of the university workforce, low pay and the fact that universities are being forced increasingly to act like businesses. We see the impact that that has had on freedom of speech. At Leicester and Sheffield, universities I know quite well, we had seen that whole departments doing really creative, original, critical thinking have been decimated or destroyed by the imperative to go for business returns. However, I will resist the urge to make a Second Reading speech, tempting as it is, and focus on my Amendment 36, which is drawn from an amendment that was tabled in the other place and makes a crucial point.
Anyone who read the Times this morning will have seen some very disturbing articles about harassment, particularly sexual harassment, in our military. That is a reminder of how institutions that have existed for many centuries have accumulated cultures that tend to be extremely hierarchical, and it tends to be the more junior elements who suffer pressure from the more senior. That is where harassment can be a particular issue, as was identified by the article in the Times about the military this morning.
I bring a little personal experience in that, many years ago, before the Green Party took over my life, I was very interested in history. I went to a great many academic history seminars and one thing I noticed in those seminars was that questions were asked by the senior professors, then by the professors, then by the associate professors, then by the senior lecturers, and then by the lecturers. Universities and academia in general can be surprisingly extremely hierarchical organisations. When we talk about protection from harassment, we have to look particularly at the situation of more junior staff, especially those with the casualised contracts I mentioned earlier, as so many are.
I would prefer that the Bill did not exist at all, but since it does exist, I believe it is important that we have this protection against harassment, particularly harassment against more junior members who may find themselves effectively subjected to a barrage of attack under the guise of free speech. It is crucial that the Bill does not empower that to happen.
Baroness Fox of Buckley (Non-Afl)
My Lords, I support Amendments 13 and 28, which I have put my name to. In general, I support any amendments in any of the groups coming up that aim to strengthen, extend or deepen the Bill’s duty to academic freedom and free speech, and that give some ballast to seeing free speech as not extraneous to the purpose of universities but core to their mission.
The key point in Amendment 13 for me is that it notes the nature of the speech as covering speech of a
“political, philosophical or academic nature”
and that
“‘Speech of a political nature’ includes … debate of any question of public interest.”
That is the kind of broad definition that we need at the present time. Amendment 13 also seeks to clarify when steps are not reasonably practicable. It avoids the excuse often given, “We tried to be reasonably practicable but”, and instead makes free speech the default position, meaning that we are not just paying lip service to it.
This is important because we have to remember that, in the Education Act 1986, there was a clear duty to ensure free speech, academic freedom and so on. But, as other noble Lords have mentioned, it might already be in the law and yet the situation is deteriorating. In that sense, I am looking to bolster and improve or strengthen the free speech aspects of the law, not just to repeat them with threats—which is sometimes the way some people talk about the Bill.
The fact that those censorious trends have carried on despite the commitment to academic freedom in the Education Act 1986 is because universities generally argue, when controversies arise, that they are balancing academic freedom against other increasingly onerous statutory duties and institutional values. One excuse given is that of avoiding harassment, which is why I am rather concerned about the amendment of the noble Baroness, Lady Bennett of Manor Castle. I have recently found harassment to be a weasel word: for many words that we think we know what they mean, we often discover it is not quite as it was previously.
It is also why I support Amendment 28. I put my name to it because it aims to provide an enhanced sense of freedom of speech but it also—and this is key—clarifies the relationship between free speech on campus and other legal duties. The Equality Act 2010 specifies that universities must prevent harassment directed at members of their community who have protected characteristics. Section 26(4) of the Act, in which harassment is mentioned, is reasonably clear and caveated—it is not a blanket provision that anyone can say “harassment”—but because harassment is defined partially by the perception of the victim, it becomes problematic for us.
Over recent years, we have seen that universities are often overzealous in interpreting their responsibilities under the Equality Act, stressing the subjective perception of complainants and ignoring other tests in the Act. To give a couple of examples, that has resulted in the no-platforming of visiting speakers such as Professors Jo Phoenix and Rosa Freedman at the University of Essex, when it was claimed by trans activists that allowing them to speak would itself constitute harassment of trans students and staff, and the university authorities accepted that. They have since received apologies, but that is not the point I am making. This harassment excuse has added to a climate that morally devalues free speech by suggesting that it is itself harmful and that free speech can be harassment, especially to identity groups.
I suppose that gets me into the bulk of what has been discussed already: how do we define free speech? At the moment, free speech is constantly maligned as nothing more than hate speech. It is constantly said to me, “Oh, you support free speech. That is because you want the excuse to have hate speech”, or, “What is your attitude to hate speech?” I am concerned that hate speech is also ill-defined and too often amounts to little more than speech that we hate.
Perhaps we have to bite the bullet in our definitions here and recognise that there is a huge range of ideas that can be and are silenced as hateful. Even if we take hate speech at face value—something that most of us would agree was hateful, such as racist speech, bigoted views or whatever—as a free-speecher, and as I think is true in academic circles, I think we have to defend views that we do not like or consider to be bigoted. We might then have an argument about which of those views is bigoted or hateful. That is especially important in a university context because that is where we think we have the seat of debating, debunking and demolishing false ideas; that is one of the key purposes of universities in and of themselves.
One reason I worry about Amendment 3, from the noble Lord, Lord Collins, is that it claims that freedom of speech should not include freedom to espouse Holocaust denial—this is an awkward thing to talk about. It is also in Amendment 28, to which I have added my name, but I feel queasy about it. I want to probe why we would make Holocaust denial a special case. I understand that the Holocaust is a special case, and we all understand that Holocaust denial is abhorrent and monstrous, and part of the vile anti-Semitic playbook, and needs to be challenged at every opportunity. But it is not illegal in the United Kingdom. I wonder whether it is appropriate to use this legislation to make this one named exception. It might give a green light to it being said of other speech, “If that can be exempt from academic freedom, why cannot this particular hate speech be banned, even if it is legal?” There is a disingenuous strand of argument that says that the Bill will allow Holocaust denial, as though the nation’s students and academics are just waiting for the Bill to pass so that they can all rush out to deny the Holocaust. It just confuses what is really at stake here.
I want to say just a couple of other things. I have every sympathy for the amendment on the hecklers’ veto proposed by the noble Lord, Lord Hunt, and the noble Baroness, Lady Morris. But in a Bill that is meant to increase students’ rights to speak their mind, it might seem a bit of a problem to hint at restricting students’ freedom to speak, even if it is to shout loud slogans. I am genuinely torn on this, but I feel that it is the wrong thing to do, as it gives the impression that only certain people are allowed to speak; I am not keen on it.
Lord Mann (Non-Afl)
I begin by saying that, although I do not know how many others here have, I have on more than one occasion been banned, or attempted to be banned, from speaking at a university. I was last issued a banning order by the University of Nottingham in 2009, I believe, which I ignored. Various people were running around with tape recorders. The argument put forward then was that I might say something offensive because I was speaking at the Jewish society.
In the 1980s I was banned, and I had to have a meeting reorganised in a local hostelry. I was banned then because—it was very simple and straightforward—I had had the audacity the year before to visit the state of Israel. I spent four days there with the Government, but I also spent four days with Fatah, the Palestinian liberation organisation on the West Bank. It seemed to me a balanced visit, and very interesting and educational. But I was banned from speaking at a university and in two other universities my publicity was withdrawn, which made it rather difficult for anyone to attend a meeting because they did not know that one was taking place.
So this is not a new problem—and nor is it a new problem in terms of debate. I recall well the speaker tour of the Paedophile Information Exchange across universities, which took place in 1978 and 1979. Many universities had such speakers; the content was not illegal but without question it was an organising campaign for that organisation, much more than an educative one. That was certainly my assessment of it. I recall in 1985 the banning of Jewish societies, on the basis that they were bound to be racist because they were full of racists and therefore should not be allowed any space in a university. I make the point simply to inform the debate—we are not talking about a modern phenomenon.
I want to pick up one particular point from these amendments: the proposal on Holocaust denial. It is true that Holocaust denial is not a criminal offence in this country, unlike in other countries, such as Germany and Austria—I think seven or eight countries across western Europe have that. To me, that does not seem a sufficient reason not to have such an egregious denial of history in this legislation. It would be a positive outcome if the Government wished to go further in terms of criminal justice. That would be done by a separate department, with separate legislation, and it may well get some support. In this context, it seems that provisions on the acceptability of entirely turning history on its head would be helpful to our universities, although the main problem we have these days is of course Holocaust distortion and minimisation. I would not suggest going further into a much greyer area, but I think this proposal ought to be considered very strongly by the Government.
Lord Macdonald of River Glaven (CB)
My Lords, I declare an interest as the former warden of Wadham College, Oxford, and as an honorary fellow there and at St Edmund Hall, Oxford.
I have a great deal of sympathy with the remarks made by the noble Lord, Lord Hunt, in which he identified a problem but suggested that this Bill was not the right way to confront it. As the noble Baroness, Lady Fox, rightly said, the problem is a very deep-seated cultural issue that I doubt will be dealt with significantly by this legislation, should it pass. It is my experience of running a college that has led me to feel rather queasy about some of the slightly nightmarish, as I see them, schemes and bureaucracies proposed by the Bill.
Of course, there is an issue. The case of Kathleen Stock is the most egregious example. In my view, she was disgracefully mistreated by her university and professional colleagues, not to speak of the students at the University of Sussex, some of whom seemed to be clearly breaking criminal law with the demonstrations they mounted against that highly respected academic. Young men—they seemed to be men—wearing balaclavas, holding flares and chanting threats against her seemed to me clearly to represent a breach of the criminal law, and it is a great shame that the university did not see it that way.
However, it is not just Kathleen Stock. The events in a Cambridge college over the past few days have also been deeply disturbing. The idea that a writer such as Helen Joyce, who I would regard as entirely in the mainstream, should be regarded by the most senior figures in that college as unacceptable as a speaker seems deeply depressing and redolent of a cultural problem, not just in that college.
An amendment put forward by the noble Lord, Lord Hunt, therefore attracted my interest. It is the one that relates to the question of a hecklers’ veto. The way I perceive it, the issue in universities is not so much that events are being stopped by demonstrators standing outside chanting and making a nuisance of themselves; it is the more or less cowardly response of university and college authorities who decline to host events when they fear or are warned that that sort of response will eventuate. This is a true hecklers’ veto. I have some sympathy with that amendment, although I share again the hesitation expressed by the noble Baroness, Lady Fox, that the Bill should contain a clause which is anti-free speech, if you like, rather than it being consistently pro-free speech.
I have great respect for the noble Lord, Lord Moylan, but I strongly disagree that Article 10 is somehow deficient for our needs in this area. On the country, it provides generous and comprehensive jurisprudence on the right to free speech; it is suitably qualified and well understood by our courts, public bodies and public institutions. It is certainly well understood in the University of Oxford, the university I have been most associated with. I think Article 10 is entirely fit for purpose and I strongly support the amendment from the noble and learned Lord, Lord Hope, to reference it in this legislation. It would provide consistency and legal certainty, so I hope the amendment will not in the end be controversial with the Government.
Baroness Chakrabarti (Lab)
My Lords, I did speak at Second Reading, so I really am not going to make a Second Reading speech; I am not going to say I am not and then do it. Although I have been clear that I think the Bill is a mistake that will lead to a great deal of time-consuming, heartbreaking and expensive litigation for our universities, which should instead be engaging in what they should be engaging in, including creating the culture that we all want, I say in some sort of spirit of bipartisanship to the noble Lords and Ministers opposite that the amendment from the noble and learned Lord, Lord Hope, is a learned and friendly gesture indeed.
All these amendments and everything that I have heard so far merely emphasise the dangerous complexity of legislating so clearly in the realm of a convention right without referring to it at all, save the statement that the Minister is required to make on the cover of the Bill about compatibility with Article 10. It is clearly the Government’s intention that this Bill, wrong-headed though I think it is, should comply with Article 10, so to try to redefine Article 10 in a slightly different way in the body of the Bill is a mistake that adds to the complexity and the danger for different regulatory bodies, be it the Equality and Human Rights Commission or the Office for Students. The noble and learned Lord has helped by making it clear that freedom of speech within the law in the United Kingdom means compliance with Article 10 of the convention. Frankly, that was pretty much the case before incorporation by way of the Human Rights Act.
I take the point from the noble Lord, Lord Moylan, that, with the resurrection of the former Justice Secretary and Deputy Prime Minister, he wants to future-proof and hopes for the scrapping of the Human Rights Act, but even the rather botched and misnamed Bill of Rights Bill purports to comply with Article 10. It is jumping the gun to try to define freedom of speech within this sector differently from the way it is defined in every other aspect of UK law and life.
I also say to the noble Lord, whose libertarian instincts on free speech I share, that, as a matter of jurisprudence and law, he is mistaken in a number of ways. It is all very well banging the drum for the common law, but there literally was no actionable right to free speech in this country until Article 10 was incorporated by the Human Rights Act. There could be under a future Bill of Rights, but there literally is not this magic thing in the common law that will protect people’s free expression without Article 10. Why? Because Parliament is sovereign and every other law that impacts on free speech will trump the free speech that I believe the noble Lord wants to see. Evidence for that lies in the issues around policing and all the other things that he has touched on in the Chamber in his time in the House. Parliamentary sovereignty will trump common law, and without Article 10 there is currently no actionable right to freedom of expression in this country.
With respect, his Amendment 28 fails to achieve what he would like. It is much more limiting a protection than the protection in the extensive jurisprudence of Article 10. For example, to say:
“‘Freedom of speech within the law’ means”
freedom of speech that
“is not prohibited by law”
is somewhat circular.
Lord Moylan (Con)
My Lords, it sounds to me that the noble Baroness is making the case for why Article 10 is insufficient. It applies already and it is not working. She has given a number of reasons why it is not working. It has not achieved the culture shift that—I think this is common ground—we believe needs to be achieved.
Baroness Chakrabarti (Lab)
Inasmuch as there is a limit to what any legislation can do without the resources and culture, clearly that is the case. This is an argument that people make against human rights all the time. My point is simply that, if you are legislating for free speech in any sector in this country, you have to make reference to the human right to free speech in this country. Our current legal regime means that that is Article 10.
Lord Moylan (Con)
With respect, I have not made a case against human rights. The definition I propose does not impinge on or restrict Article 10; it actually gives greater freedom and greater rights. I quibble at that point, because it is quite a serious point if it is being suggested that I am trying to impinge on existing rights. I am not.
Baroness Chakrabarti (Lab)
I beg the noble Lord’s pardon. I take the point, and I tried to make it clear that I know that he has a very libertarian instinct towards free speech, which I share. I tried to argue that his Amendment 28 is more restrictive than Article 10; that is a matter of the way that it has been crafted.
My general point is that if this area of complexity that we are entering is to be made even more complex and potentially incoherent by having two different definitions of freedom of speech—one for everyone in the country and in the Council of Europe, to some extent, under Article 10 and another in relation to universities only—then that is at the heart of the problem in a thoroughly problematic Bill.
Lord Grabiner (CB)
My Lords, I also apologise for not having participated at Second Reading. I have a perfectly excellent excuse: I was having knee surgery, which I am afraid has not worked out as well as I had hoped, so I will have to go back for some more. That is my reason for not having attended before.
I should disclose my interest in this Bill. In previous lives I was for nine years chairman of the LSE and for seven years, until last year, the master of Clare College, Cambridge. I am an honorary fellow at both places. I am currently president and a non-executive director of the University of Law.
Unlike some noble Lords who believe that there is no need for this Bill, I take the view that there would be great value if legislation was in place that enshrined the duties spelled out in Clauses 1 to 3. On the need for the statutory duties, I respectfully agree with the points the Minister made at Second Reading, especially when he listed numerous examples of recent behaviours that were designed to stifle freedom of lawful speech or had that effect. I completely agree. I take much the same position as the one advocated at Second Reading by the noble Lord, Lord Macdonald of River Glaven. There is a serious problem, but in key respects the Bill addresses it, though not necessarily in the best way and possibly in the wrong way.
As far as the matters that are being discussed are concerned, I will deal very briefly with one point. It has become apparent from a number of points that have been made thus far that there really should be a definition in the Bill, and ultimately in legislation, of freedom of speech within the law. At the moment, the Bill contains no definition provision at all. My view, for what it is worth, is that the definition put forward by the noble and learned Lord, Lord Hope of Craighead, is a perfectly excellent and workable suggestion.
I would not go so far as to say that I disagree with the proposal in Amendment 28 from the noble Lord, Lord Moylan, and others because at the moment I have not fathomed in my own mind the relationship between the noble and learned Lord’s proposal and the noble Lord’s. There may be some scope for a combination of the points made in both amendments—I do not know. If anything was to be added to the definition in the amendment from the noble Lord, Lord Moylan, I would be interested in seeing precisely what that was before coming to a final conclusion on the validity or worth of one amendment versus the other.
The one point that I would pick up on in relation to the amendment proposed by the noble Lord, Lord Moylan—the noble Baroness adverted to it moments ago—relates to the reference to “any confidentiality agreement”. In my view, that is far too wide. Non-disclosure agreements have developed a good deal of notoriety, especially over the last few years. If the non-disclosure agreement were to be used as a mechanism effectively for suppressing free speech—of course that is very often precisely why they are devised and forced on one side to sign up to—the reference to the confidentiality agreement proposed in Amendment 28 would not be acceptable.
There may be very good occasions when a confidentiality agreement needs to be properly respected and observed, when it is not being used for that offensive objective, to suppress free speech. There will be many circumstances, commercial as well as in a university environment, where the need for confidentiality is absolutely critical, but I would not agree simply to have a broad exclusion for confidentiality agreements.
Baroness Smith of Newnham (LD)
My Lords, I wish to speak briefly in my own right, as opposed to speaking for my noble friend Lord Wallace, apart from one point about Amendment 1. The point of adding “within the law” is to fit with new Section A3, but that would be subsumed by the amendments in the name of the noble and learned Lord, Lord Hope of Craighead. The idea of defining freedom of speech is highly desirable, and that amendment appears to do the job.
I have some difficulties with Amendment 28, and it would be interesting to understand what the movers of that amendment mean in proposed new subsection (2). The relationships between this legislation and the Equality Act, and this legislation and other pieces of existing legislation, need to be thought about. I have some concerns about what the ramifications of proposed new subsection (2) would be.
Lord Collins of Highbury (Lab)
My Lords, this has been a fascinating debate, and one we could continue for some time, because it is about trying to reach a consensus about concepts—I have my name down to Amendments 3, 11 and 30—but it is also about how we talk about free speech in universities and about academic freedom. There has been confusion in the debate about those two things. One of my amendments tries to say that we should not forget academic freedom and how important it is to university life, and asks about the constraints on it, which are not necessarily all the things that we have been talking about. In my experience, academic freedom can be constrained by economic factors and income streams that universities might have. Research can be restrained for those sorts of reasons, and academics who followed a particular route of research have been constrained by those other pressures.
The noble Lord, Lord Mann, is absolutely right. He and I have shared the same experience: political views can be unpopular, and some of the demonstrations that we have faced have been quite violent. The noble Lord, Lord Alton, has sadly left the Room, but we had a debate on Friday on his genocide Bill, as well as a debate on Thursday about Ugandan Asians. I remember standing up and defending the need to protect Ugandan Asians and facing a quite violent reaction from people. It was not limited to the streets; it was in other institutions, even in my own trade union and my own party.
As a lifelong trade unionist—I am not making a Second Reading speech, but talking specifically about my amendments—I have long experience of how politicians want laws to change culture, which is impossible. The most successful progress in industrial relations has been made not by legislation but by consensus, agreement and discussion.
Earl Howe (Con)
My Lords, we have begun our debates in Grand Committee with a group of amendments all of which, in one way or another, address the main duties in the Bill relating to freedom of speech.
Amendment 1, introduced by the noble Baroness, Lady Smith of Newnham, would add the words “within the law” and is intended, as she explained, to ensure that the reference to the importance of freedom of speech in new Section A1 is identical to that within new Section A3. Let me straight away assure her that the speech protected by the Bill is only speech that is within the law.
The duty in new Section A1 to have particular regard to the importance of freedom of speech is part of the duty to take reasonably practicable steps to secure freedom of speech within the law. It emphasises the significance of freedom of speech as a concept and ideal, but a provider needs only to take reasonably practicable steps to secure freedom of speech if that speech is within the law. So the reference to freedom of speech within the context of the duty to have particular regard does not need the narrowing descriptor of “within the law”.
This is different from the duty in new Section A3, under which a provider must promote the importance of freedom of speech within the law. The duty to promote is about encouraging a culture of free and open discussion on campus. In this context, the importance of freedom of speech does need the narrowing descriptor of “within the law”.
Amendment 2 seeks to make clear in the Bill that freedom of speech in the Bill is an aspect of freedom of expression under Article 10 of the European Convention on Human Rights. I listened with great care to the noble and learned Lord, Lord Hope, and those who spoke in support of what he said. Amendments 3 and 28 also propose definitions of freedom of speech. Amendment 36 seeks to prevent freedom of speech being used as a defence against behaviour which amounts to harassment under the Equality Act.
Freedom of speech is a term that has been used in domestic legislation in a higher education context since the Education (No. 2) Act 1986. It is well understood in that context and there is no intention to change its meaning in this Bill. It is important to note, for example, that it covers both verbal speech and written material, including in electronic form. Accordingly, freedom of speech is a broad concept, and is indeed protected under Article 10 of the ECHR as an aspect of freedom of expression. It is worth adding that Article 10 includes the freedom to receive information from other people by, for example, being part of an audience or reading a magazine, which this Bill does not cover.
There is, in fact, already a non-exhaustive definition of freedom of speech in new Section A1(11), which provides that
“references to freedom of speech include the freedom to express ideas, beliefs and views without suffering adverse consequences”.
We did not consider it necessary to include in this definition a reference to Article 10. The Human Rights Act requires that, so far as possible, legislation
“must be read and given effect in a way which is compatible with”
the rights under the ECHR. We are clear that the Bill is entirely consistent with that requirement.
The activities mentioned in Amendment 3—teaching, researching, engaging in intellectual inquiry, contributing to public debate and criticising any institution—are all covered by the concept of free speech as just described. However, affiliation to an institution and being a member of a trade union body are not per se matters of speech and so are not covered by a Bill that is about speech.
As regards Holocaust denial, referred to in Amendments 3 and 28, let me make clear that any attempt to deny the scale or occurrence of the Holocaust is morally reprehensible and has no basis in fact. In many cases, those who deny the Holocaust also have links to neo-Nazi extremism, anti-Semitic violence and intimidation. The European Court of Human Rights has held that Holocaust denial is not protected speech under Article 10 of the ECHR, as such speech is intolerable in a democratic society, and that Holocaust denial, even if dressed up as impartial historical research, must be seen as connoting an anti-democratic ideology and anti-Semitism.
There is no place in universities for extremist views that masquerade as facts but are in fact complete fiction and are deeply offensive. We certainly do not encourage higher education providers, constituent colleges or student unions to invite individuals who deny that the Holocaust ever happened to speak on campus. However, I should note that it is not the intention of the Bill to change what speech is held to be lawful or unlawful.
I turn to other aspects of my noble friend Lord Moylan’s amendment. It is not necessary to specify that speech that is unlawful, whether because it is in breach of a legal duty, a confidentiality agreement or intellectual property rights, is not included. Finally, on the element of Amendment 28 relating to the Equality Act, and also Amendment 36, it is important to note that, when considering a claim of harassment, courts and tribunals must balance competing rights on the facts of a particular case, which could include the rights of freedom of expression, as set out in Article 10 of the ECHR, and academic freedom, as set out in the Explanatory Notes to that Act. Guidance has specifically made clear that the harassment provisions cannot be used to undermine academic freedom.
Amendments 9, 10, 27 and 42 are designed to probe the meaning of “beliefs”. As I mentioned earlier, new Section A1(11) has a definition of freedom of speech which includes
“the freedom to express ideas, beliefs and views without suffering adverse consequences”.
This builds on the current wording of the Education (No. 2) Act 1986. It is vital that students, members, staff and visiting speakers can speak freely on campus about their beliefs, without damaging their prospects or suffering other repercussions. Beliefs are not the same as views.
Lord Grabiner (CB)
I am sorry to interrupt, but the Minister said a couple of times that subsection (11) is a definition of freedom of speech. I respectfully suggest that it is no such thing; it simply says that
“references to freedom of speech include the freedom to express ideas”,
and so on. It is not a definition at all. It merely gives an example of what freedom of speech would be. The point about the amendment tabled by the noble and learned Lord, Lord Hope, in particular is that it requires the introduction of a definition into the Bill, not simply the provision of an example of what freedom of speech might consist of. I suggest that a definition is essential, otherwise you will simply be scrabbling around to see what somebody thought freedom of speech might have meant in 1986. We have a perfectly excellent definition in the human rights legislation and the convention, and I am not quite sure why there is such a determination to avoid the obvious, so to speak.
Earl Howe (Con)
I take the noble Lord’s point entirely. I think that I said that the definition I referred to was non-exhaustive. It is quite deliberately non-exhaustive, because it is a definition that we felt was appropriate for the purposes of the Bill. I suppose I could sum up the issue by saying that we believe there is a consistency between the Bill and the ECHR, even if there is not total congruency.
I emphasise that the duty in the Bill to take reasonably practicable steps means that providers, colleges and student unions can take account of all their legal duties on a case-by-case basis. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that.
Amendment 11 would provide that a non-disclosure agreement with a provider does not mean that members, staff, students or visiting speakers could not speak freely. There is an exception for intellectual property. I very much support the spirit of this amendment—in particular, victims of sexual misconduct and harassment should never be pressurised into keeping silent. The previous Minister for Higher Education, Michelle Donelan, strongly supported work in this area. She launched a voluntary pledge in January this year, in conjunction with Can’t Buy My Silence and universities, to encourage providers to commit not to using NDAs to silence victims of complaints of sexual harassment, abuse or misconduct, and other forms of harassment and bullying. To date, 74 higher education institutions and three Oxford colleges have signed up to this. The Government are working with Can’t Buy My Silence to call out those who have not yet done so.
Lord Collins of Highbury (Lab)
Does the noble Earl not think that that is a good example of where good practice can be adopted not by legislation but by employers agreeing that something is not appropriate? Can he not proudly point to that as somewhere the Government have intervened and change has happened without the need for legislation?
Earl Howe (Con)
We certainly hope that this will gain traction. I agree that in most circumstances it is better to encourage voluntary action, as long as it works. This is very much a work in progress.
We have also asked the Office for Students to create a new registration condition to ensure that it properly tackles sexual misconduct. This would have real teeth and would mean that providers could be sanctioned with penalties, suspension from the register or even deregistration. This follows the publication by the OfS of a statement of expectations for providers in this area.
I make the point that we are the first Government who are prepared to tackle this issue. I shall continue discussing with colleagues on both sides of the House how best we can tackle sexual harassment and misconduct in our universities. I therefore have no difficulty in committing to taking this matter away and looking at it further.
Lord Moylan (Con)
Does my noble friend wish to expand at all on my Amendment 13 about “reasonably practicable”? The essential point is that there is an existing duty in the 1986 Act that has two parts to it to take reasonably practicable steps to secure freedom of speech. If my noble friend’s position is that neither the definition of freedom of speech nor the definition of what is reasonably practicable is to be amended, why is he not frank in saying that there is no intention to change the current duty?
Earl Howe (Con)
I apologise to the Committee. I know that I have been speaking for a long time, but this is the very issue that I was about to come on to next, if my noble friend will allow me.
Amendment 13, which is the amendment that my noble friend was referring to, seeks generally to strengthen the test for what is “reasonably practicable”. It would mean that, in relation to speech of a political, philosophical or academic nature, it would always be reasonably practicable not to interfere; in relation to other speech, it would be reasonably practicable only if taking that step would prejudice the functioning of the provider. I hope that I have paraphrased the issue correctly.
The Government’s position, supported by the OfS, is that we stand for the widest possible definition of free speech—anything within the law—and that, where debate is particularly contentious, it is all the more important that everyone feels able to put forward their views and arguments and be heard, on all sides.
The “reasonably practicable” wording of the main duty means that providers can take account of all their legal duties on a case-by-case basis. But I must be clear that my noble friend’s proposed strengthened test goes too far in not allowing providers to take account of all the relevant circumstances, including their other legal duties—for example, to prevent unlawful discrimination or harassment, or to comply with the Prevent duty so as to stop students and others being drawn into terrorism. There may be occasions where it is not reasonably practicable to secure freedom of speech of a political, philosophical or academic nature, even if that speech is lawful, and we must not impose a test that has so few exceptions.
If I might address the point made by the noble Lord, Lord Triesman, about conspiracy theories, the question of whether espousing a conspiracy theory is lawful depends on what is said. If it is defamatory, it would be unlawful. The point of the Bill is to take a wide approach to freedom of speech as a fundamental principle in a democratic society, but there is nothing in the Bill to encourage baseless or harmful claims, or bad science, on campus, for example.
Amendment 25 seeks to clarify the position regarding balancing the right to freedom of speech with the right to protest. The purpose of the Bill is to protect freedom of speech, but the right to peaceful protest is a fundamental tool of civic expression and will not be curtailed by this Government. Of course, it can itself be an aspect of freedom of speech. If there is a protest against a particular academic because they have said something controversial but lawful, providers will need to decide what reasonably practicable steps they can take to ensure that the academic can speak freely.
The intended effect of the Bill is not to prioritise one right under the ECHR—that is to say, freedom of expression under Article 10—over others, such as the right to protest under Article 11. The requirement to have “particular regard” to the importance of freedom of speech builds on existing provision under Section 43 of the Education (No. 2) Act 1986 and could, in a particular case, prompt a higher education provider to prioritise freedom of speech over another convention right. However, this would remain subject to its assessment of what is reasonably practicable and would need to be lawful.
It is worth noting that a provider’s code of practice under new Section A2 must include the procedures to be followed when organising meetings and activities, as well as the conduct required in connection with them. This will ensure that staff and students are aware of their responsibilities as regards their own conduct.
The noble Lord, Lord Hunt, suggested delaying Royal Assent to allow universities due time. Let me confirm to him now that implementation of the Bill will not be rushed. Various actions need to be taken before the new regime can come into force, including consultation with the sector and the provision of guidance, so providers, colleges and student unions will be fully engaged and able to understand their responsibilities under the Bill.
I turn next to Amendment 30 in the name of my noble friend Lord Sandhurst, which seeks to ensure that codes of practice have a process in place for dealing with meritless claims against staff and students. It is an important point that providers should not have to spend time and resources responding to frivolous or vexatious complaints. However, I should make it clear that the duties in the Bill are imposed on the governing body of registered higher education providers. There cannot be complaints made under the Bill about the freedom of speech duties against staff, members and students of the provider, or visiting speakers, as the amendment suggests. Higher education providers will in any case have their own procedures already in place for handling internal complaints. As for burdens on providers, unnecessary bureaucracy can take up time that could be spent focusing on the academic experience and high-quality teaching, but these measures are absolutely necessary to protect the core value of freedom of speech and we consider that the duties imposed are proportionate and appropriate.
I hope my remarks have provided noble Lords with reassurance about the Bill’s approach regarding the main duties set out in it and that they strike the right balance.
Baroness Smith of Newnham (LD)
My Lords, clearly, I have not quite been mandated by my noble friend to accept the noble Earl’s answer, but, given his answer, I shall beg leave to withdraw Amendment 1 and I suspect it will not need to come back on Report. The clarification on the other amendments associated with belief were very helpful, but that might be an area where further amendments are brought on Report. I beg leave to withdraw the amendment.
Baroness Smith of Newnham
Member’s explanatory statement
This amendment is intended to probe the definition of “members” in this paragraph.
Baroness Smith of Newnham (LD)
My Lords, again I am moving an amendment on behalf of my noble friend Lord Wallace. It might appear that he has been in a particularly frivolous mode in deleting the odd word. In this case, three of the amendments in the name of my noble friend, Amendments 4, 37 and 57, all suggest that we delete “member”. This is because the concept of “members of the provider” seems somewhat unclear.
Lord Triesman (Lab)
My Lords, I will speak to my Amendment 22. One of the things that I have inevitably observed over a long period is that the proportion of the academic and academic-related staff who are on full-time contracts of the kind that we used to describe as tenured contracts has declined significantly. In some institutions it has declined almost to the point where they are a small minority. I do not agree with why that has happened, but I understand why it has. Generally speaking, it is quite difficult to get rid of people who are tenured, and if you are in economically straitened circumstances, you are probably looking for the least protection possible for some grades of staff.
But it is also true that the number and proportion of staff, and I make the point about both, who are no longer tenured but are absolutely vital parts of the academic community and are now on part-time, hourly and short-term contracts—a whole variety of contracts that do not conform to what we would have thought of as tenured staff—are increasingly women and members of ethnic minorities. There are all sorts of reasons why that is the case. For women, it is often said that, because their careers get interrupted for various reasons, it is easier to deal with them if they are not in a tenured position. For example, you do not have to replace them for maternity leave purposes. This has had a detrimental effect on the security of employment that is also discriminatory.
I will make two points that I hope the Grand Committee will feel are not in any sense unhelpful. First, if we want to ensure that the whole of the academic community buys in effectively to these concepts and the Bill’s key propositions—I share with my noble friend Lord Hunt and many others who have spoken the belief that this is probably not the right way of going about it, but none the less we are going about it so I am going to do my best with what we have—then we need to make sure that universities understand that it means the whole of the community. I regret to say that many universities tend to think of the academic community as being the tenured staff; I fear that that is probably also true of some Cambridge and Oxford colleges, having known those colleges myself over the years. They have much less regard for whether other aspects of academic life apply to all the other academics. I am not even being particularly critical of that; I am just saying that it is one of the ways that the sector has evolved.
Secondly, as I have said, this has had a discriminatory effect. When we talk about the academic community, it would be very easy to say that we do not have exceptions in mind. As the noble Baroness, Lady Smith, said just a few moments ago, we mean the whole thing, because we intend that the Bill’s impact should be on the whole of that community who are employed as academics, irrespective of the character of the contract they hold. I do not even believe that it would have any difficulty embodied in it for contractual or other purposes; it would simply be everybody who is employed to teach or research. I include in that “academic-related”, because, rather like the librarians in your Lordships’ House, there are a number of people who do background research that is fundamental to the academic conduct of an institution.
I commend this amendment without embarrassment, because either the Bill means what it says or it means it for only some people.
Lord Sandhurst (Con)
My Lords, I will address Amendment 26 and the consequential Amendment 71, which we need not look at. Amendment 26 effectively aims at much the same target as the noble Lord, Lord Triesman. It may be that the definition is different and it may be that we can discuss this, but the point is exactly the same: it is to include the whole of the academic community in the university. We must get these words right. If there is a practical difficulty with the use of “emeritus”, for example, we can look at it.
What is really necessary is that “academic staff” is made clear in the Bill and that it covers the range of people who are most vulnerable. The most vulnerable are not those on full-time contracts; they are the doctoral students, other teaching staff and researchers, and those on part-time or less secure contracts. It is vital that, if they are pushing forward ideas that happen to be unpopular in their particular community, but are legitimately doing their job well, they are not dismissed or otherwise penalised for holding those views and expressing them.
Amendment 26 was tabled at Report in the Commons, and on 13 June, the Universities Minister offered the following clarification:
“To clarify, the Bill uses the term “staff” to broaden the existing reference to employees, as not all those who work for a higher education provider have an employment contract or employee status. I can confirm that it will include those on short-term, casual contracts and PhD students undertaking teaching.”—[Official Report, Commons, 13/6/22; col. 72.]
I suggest that my amendment would go a little further and make it absolutely clear that it encompasses all those who will need protection.
Baroness Fox of Buckley (Non-Afl)
My Lords, much has been said that I agree with. I shall speak to Amendment 26, to which I put my name. As people have been declaring their interests, I should say that I have never run an Oxford college and am never likely to, but in the Academy of Ideas, I have been working with students for a long time on the issues of free speech and academic freedom—that is the kind of work I do—and a number of those students go on to become young academics. I fully support the broadening out of what we mean by academics, because sometimes it means the seasoned prof rather than the broader community of the academy.
The recent report of the Policy Institute at King’s College London said that 41% of students agreed that academics who teach material that offends students should be fired. That is extraordinary, if you think about it: they think that they should be sacked if they teach the wrong things. I do not suggest that those students cannot be won round or that those academics will all be fired, but that is the kind of climate we are talking about. There is an institutionalised acceptance of this—which, by the way, I think is partly due to the students-as-consumer atmosphere, and the managerialism and commercialisation of universities. It is a bit like saying, “I don’t like what you teach, I find that offensive; you should be sacked.” That is one explanation of why nearly 36% say that they are self-censoring.
When I have talked to young academics, I have found that they are the ones who feel that they cannot speak out, and that they are looking over their shoulder all the time. A number of older professors who are prepared to speak out say, “Well, what can they do to me, I am about to be emeritus?” But even then they do not speak out because they say, “I don’t want my reputation to be sullied, to be slandered or to be called a bigot.” If you are trying to get research grants, or get on the ladder of work and so on, you are going to be wary.
Lord Macdonald of River Glaven (CB)
My Lords, I thought it axiomatic that references to academic staff in the Bill included all academic postholders, whether tenured or on short-term contracts. I had assumed that they were included. It would be very useful if the Minister could confirm that, because there is no doubt that academics who are working on short-term contracts are more vulnerable in this field than others. I myself had the experience of speaking to young academics—junior research fellows and so on—in that situation, who are a little nervous about expressing views which are, if I can put it this way, outside the cultural mainstream. They need particular protection in this area, so I would be grateful if the Minister could confirm that “academic staff” includes those on short-term contracts as well as those enjoying tenure.
Lord Grabiner (CB)
My Lords, is this not another example of why it would be helpful to have a definition provision in the Bill? If there was one, “academic staff” and “members” could be defined, and there would not be any debate about who did or did not fall into one or other of these categories.
In this context, it is worth bearing in mind another point. All universities, as institutions, will have either statutes—as in Cambridge, Oxford and some other universities, such as Durham—or their own constitution. You would glean from the constitutional documents of the institution who is a member of the academic staff and who is a member. We are a bit in the blind here, because in order to determine whether person X is a member of the academic staff or person Y a member of some institutional college, you will have to look at the constitutional documents of the organisation to find the answer. It would be quite helpful to have it in the Bill as well, so that there could not be any misunderstanding. Also, we could end up protecting through the Bill people who, strictly speaking, might not fall within the relevant definition of a particular institution. In that sense, the Bill could improve the position of individuals who are, to use a loose expression, associated sufficiently with the world of academia and who are deserving of cover here.
For example, there is a big difference in Cambridge. Once you are a student in a college, you are a member of that college for life. That may not be true in other universities—I do not know. For example, it probably was not true at the LSE; I do not remember. It is certainly true of any college in Oxford and Cambridge, so it is a bit unsatisfactory not to have a sufficiently clear definition applicable to everybody.
Lord Stevens of Birmingham (CB)
My Lords, picking up that last point, I support the amendments in this group that expand the definition of what constitutes an academic, but I wonder whether the Minister in his response can provide reassurance on the interaction between the academic freedom requirements of the Bill and the ability of universities to ensure high academic standards. Most of the amendments before us relate to the question of what constitutes freedom of speech, rather than academic freedom per se. I think the Minister said a moment ago that nothing in the Bill prevents bad science on campus. The corollary of that should be that nothing in the Bill should prevent universities preventing bad science on campus.
We cannot have a situation in which the academic freedom protections are used to allow those who do not believe that smoking causes cancer to continue at a medical school or those who believe in creationism to lecture in the physics faculty rather than the theology faculty, to cite a well-known example. Indeed, the University of Manchester had the discretion to take action against its PhD student who, noble Lords may have observed, is pursuing a thesis on paedophile masturbation, which is deemed not to meet sufficient academic standards. Yet under the definition of academic freedom here, those views could affect the likelihood of that person’s promotion or securing different jobs at the provider.
Baroness Fox of Buckley (Non-Afl)
My Lords, if a science department employs people who do not believe in science, that does not seem to me to be a free speech issue. Even with the PhD thing, they can have those views in the bar and nobody will care, right? It is about what they teach. I am not suggesting that people should be able to carry on doing their job if they are not able to do their job, but they should probably never have been employed or signed up for the PhD in the first instance.
Lord Stevens of Birmingham (CB)
The noble Baroness is making precisely the point I was seeking to draw out. As we discussed at Second Reading, freedom of speech is not the same as academic freedom. We need to make sure that, in protecting both appropriately, we do not stand in the way of the kind of management action that it would be reasonable for universities to take. In a nutshell, we are saying that universities are not a single space. There is a space for freedom of speech, particularly in respect of students, but the classroom is a place for verified expertise. Perhaps in his response the Minister can give us the assurance that nothing in the Bill will stand in the way of universities continuing to exercise that function.
Baroness Chakrabarti (Lab)
My Lords, first I need to apologise—I forgot to declare my interests in the debate on the previous group. I refer to my academic interests as set out in the register. I also forgot to thank the Minister and his colleagues for the meeting they had with many of us last week, which I for one found very helpful in trying to unpack such a complex area.
This is a vital group of amendments in probing the class of people protected by the new duty, which dovetails with what will come later—the new statutory tort. I suspect that, in replying, the Minister will try to give comfort that the class defined in new Section A1(2) is intended to be a very wide class and to cover tenured and non-tenured academic staff, postgraduate teaching students, et cetera. I am instinctively for that.
I would even go further and say that universities are vital centres of the communities in which they are situated. They have a wonderful economic and cultural impact in the towns, cities and rural areas where they exist. One of the many things that they contribute is public lectures and meetings, where people who have never even attended university themselves get the opportunity to come and hear from world-class academics and other speakers. That is all wonderful, but it creates challenges in relation to these very divided times we live in.
One of the smaller questions that I put to the noble Earl’s team last week—for me, this is a grey area; I am not an expert in education law—is the relationship between subsections (2) and (3) and whether there is potentially an even wider group of people who may be protected and therefore have the benefit of the statutory duty. To be clear, and to go back to my comments in the first group, I want freedom of expression to be protected for the broadest group of people in our society, subject to the caveats and balancing exercises in Article 10. If a member of the public comes to a public lecture, I do not want them to be unnecessarily censored, manhandled or thrown out just for having a different point of view, even though they are not a member, staff member or student of the university. I am confident that that is properly protected by Article 10. The beauty of Article 10 is that it does not really invite lots of financial damages and therefore does not cause too much of a nightmare for the university. However, now we are talking about a statutory tort and pecuniary damages, so we have to be a little bit careful about whether the point in subsection (3) about
“securing that … the use of any premises … is not denied to any individual or body”
is not too broad in relation to bodies which are not even constituent parts of the university.
I know that the noble Earl’s team have views about that, and I certainly believe that the Government’s intention is that only the people covered by new Section A1(2) get access to the statutory duty. Subsection (3) is not intended by the Government to throw the statutory duty wide open to anybody who is thrown out of a meeting for heckling, et cetera; but I urge caution, because this clause will be read expansively, not least because of the duty in Section 3 of the Human Rights Act to which the noble Earl referred in his earlier remarks. Maybe he will have something to say about that.
Even if every heckler who is ultimately thrown out will not be protected, because subsection (3) is not intended to expand upon subsections (2)(a) to (2)(d), we have quite an issue—that is, quite an expansive category of beneficiaries under “visiting speakers”. I am absolutely clear that to make sense, “visiting speakers” here must mean putative visiting speakers, otherwise there is no point to this paragraph. So many of the stories noble Lords have complained about are about people who could have come, would have come, were invited, were nearly invited but were never quite invited because of the atmosphere there, or were denied. So, I am quite clear in my own mind that in subsection (2)(d), “visiting speakers”, must and will include—and will be found by a court to include—potential, putative speakers.
I put the scenario to the noble Earl last week of the meeting that takes place to discuss the speaking programme. A controversial name is mentioned, and the decision is ultimately made that that person is not to be invited because of fear of controversy. People are tweeting after the meeting, because that is what people on Twitter do—I am not in that category—and we now have potential litigation from the putative speaker, whatever level of controversy they excite.
Baroness Thornton (Lab)
My Lords, this is a very important small group of amendments. It seems to me that the previous group was about what the law should say, while this debate has been about is who it is going to apply to. I was struck by my noble friend Lady Chakrabarti’s description of the academic who might suffer. I was thinking back and remembering, and I need to say that I am an emeritus governor of the LSE, but I think I am absolutely not a member of the academic staff there. When I was at the LSE, I attended a whole year of lectures and I fell asleep at every single one, but I do not think that counts with this.
I think the noble Lord, Lord Wallace, has been very clever in these two groups; his small amendments are exactly how you probe a Bill. I am full of admiration for his ability to do that, and I am grateful. The issue here has been mentioned by most noble Lords, because it is vital in legislation that we define who will be affected by the legislation and in what way. That is why my noble friend Lord Collins added his name to Amendment 26 in the name of the noble Lord, Lord Sandhurst. My noble friend Lord Triesman made some very good points, as did the noble Lord, Lord Stevens, and others. I think the Minister will need to continue the discussion on this because by now the Bill team and the Minister will realise that there is a lack of clarity here, which provides enormous risks to the effectiveness of this legislation.
Earl Howe (Con)
My Lords, this second group of amendments relates to members and academics, as covered by the Bill, but I will also try to address the questions put to me on related issues.
Amendments 4, 37 and 57 in the name of the noble Lord, Lord Wallace, and spoken to by the noble Baroness, Lady Smith, seek to probe the meaning of the term “members” in the Bill. The term “member” in the sphere of higher education has a specific meaning as a term of art. It includes in particular a member of the governing council of a university and those with certain honorary positions, such as an emeritus professor. Such a person may not be a member of staff of the institution and so needs specific provision in order to be protected under the Bill.
A member does not include a person who simply studies or used to study at the university, though some might use the term in that way. Current students would be covered by the term “students”. It also does not include a recipient of an honorary degree, which is awarded to honour an individual and does not give any academic or professional privilege.
The term “member” is well understood in both legislation and universities. In particular, it is already a category of individuals which is protected under the Education (No. 2) Act 1986, which sets out the current freedom of speech duties.
Baroness Smith of Newnham (LD)
It appears, according to Clause 2, that colleges are constituent parts of universities and are therefore brought into this Bill. Given that Oxbridge colleges refer to people as members, would it be possible for the noble Earl to think about further clarification? While I understand the general point that “members” might have a clear definition, it is not clear in the Bill as currently framed.
Earl Howe (Con)
I would be happy to take this away and investigate. Once I have done so, I would be happy to write to the noble Baroness and the noble Lord, Lord Wallace.
Lord Triesman (Lab)
I would be grateful for that letter as well. I suggest to the noble Earl that one of my experiences of these colleges is that they do not go back and read anything much later than 1650—I do not mean pm—and they probably do not care. If it is has to be clarified, it is much better that it is clarified.
Earl Howe (Con)
I am grateful to the noble Lord. I wanted just to cover another question that the noble Baroness put to me about retired professors. If a retired professor is an emeritus professor, they are protected by the Bill as a member. This is important if they still have a role in the university. If they have no such role, then in practice the provider will not have to take steps to secure their freedom of speech since they will not be speaking on campus or taking part in university life.
I turn to Amendments 22, 26 and 71, which seek to define academic staff for the purpose of the Bill. We have used the term “staff” to broaden the existing reference to “employees” in the Education (No. 2) Act 1986, as not all those who work at a provider have an employment contract or employee status. This term is already used in the current definition of academic freedom in the Higher Education and Research Act 2017 so is an understood term in this context.
“Staff” includes academics who hold honorary appointments for which they are not paid, for example honorary fellows. PhD students will be considered to be academic staff, for example, in so far as they teach undergraduate students. It will be a question of fact in each case whether they are covered as staff or students. The term covers staff at all levels, whether or not they are full time or part time, permanent or temporary. Visiting staff who are perhaps working at the university for a year are also covered. They must be distinguished from visiting speakers who are academics working at another institution, who are covered by the Bill as visiting speakers, rather than as staff of the provider.
I listened with care to the noble Lord, Lord Stevens of Birmingham, and his question about the way in which academic freedom interacts with academic standards. I said earlier that there is nothing in the Bill to encourage baseless or harmful claims or bad science on campus, but it is important to recognise that a provider in this context is an employer, and that its staff will have signed an employment contract and be subject to its employment policies.
Lord Mann (Non-Afl)
Under the Bill as currently worded, would the emeritus professor at Sussex University—who was not an employee but would have been covered—who was sacked four years ago for saying that 9/11 was an Israeli plot have had the option of suing the university?
Earl Howe (Con)
I do not think it is for the Bill—or indeed the Government—to specify an answer to that question one way or the other. It would depend on the policy of the university as to whether it wished to still regard that person as an emeritus professor if it took exception to what he said. I think that is as far as I can go at the moment, but I am happy to write to the noble Lord, Lord Mann—
Lord Mann (Non-Afl)
So, is the Minister clarifying that there is nothing in the Bill that would prohibit the university from sacking that emeritus professor if the university determined that it was appropriate?
Earl Howe (Con)
Exactly right.
I was making the point that a provider in this context is an employer and that its staff will be subject to its employment policies. Those policies must, of course, take account of the high regard that academic freedom is held in. However, depending on the circumstances, a provider may need to consider factors such as whether it is appropriate for the academic to continue to teach students; whether the academic has met accepted academic standards for their speech; and the ability of the academic to properly represent the provider in terms of its values and the reputation of the department and the provider.
The Bill recognises the nuances of the potentially difficult decisions that will need to be made under it. The “reasonably practicable” test allows for case-by-case decisions to be made, taking account of all the relevant factors.
Lord Macdonald of River Glaven (CB)
Does the noble Earl nevertheless recognise that this is one of the weaknesses in the Bill that is causing consternation in universities: that it appears on the face of it to provide what I might describe as malignant actors—the sort of individuals the noble Lord has just referred to—with several new avenues to cause disruption, difficulties and problems for universities, including potentially launching a specific new tort? Is it not a weakness in the Bill that universities are likely to be subject to malignant activity?
Earl Howe (Con)
With great respect to the noble Lord, I challenge any university to point to a provision in the Bill that changes the duties and responsibilities it has at the moment to take decisions for itself about what constitutes malignant speech, unsound science or whatever it happens to be. The Government are not trying to interfere in any way with the autonomy of universities in that sense.
Baroness Chakrabarti (Lab)
I am really quite surprised, because I hoped that the noble Earl was going to respond to my question, which was based on the question from the noble Lord, Lord Stevens, with some magic provision in the Bill or in the parent 1986 Act—if I can put it like that—which ensures that academic standards are specifically protected and held in the balance with the vital freedom of speech. If that is not the case we really do have a problem, because we then have the potential for one of the scientists I described in my hypothetical to sue under the new tort on the basis that they are being dismissed because of their speech and beliefs. The university will say, “No, it’s because of your bad science”, but they could say, “No, it’s because of my speech and beliefs”, and then the university would face costly, lengthy litigation.
Earl Howe (Con)
We always have to come back to what the Bill specifies that a university should do, which is to take reasonably practicable steps. That is governed by the circumstances and facts of the case, which the university will have to weigh up: the pros and the cons, the arguments on either side. That is nothing different from what they do at the moment. In a later group, the ninth, I think, we shall come to the issue of tort and, if the noble Baroness will forgive me, I will not cover that now, but I shall cover the questions that she asked me about who exactly we are referring to in subsections (2) and (3) of proposed new Section A1.
Baroness Smith of Newnham (LD)
I think that, although I shall withdraw this amendment, we are likely to have a form of amendment coming back at Report, unless the Minister manages to pull some sort of rabbit of the hat defining members and other things in a clearer way than is currently in the Bill. But with what, I beg leave to withdraw the amendment.
Lord Stevens of Birmingham (CB)
The noble Lord, Lord Willetts, sends his apologies for an unforeseen family emergency, so I will formally move Amendment 5 and speak to Amendments 7, 8 and 38 to 41.
Given that these originate with the noble Lord, Lord Willetts, noble Lords can be assured that they are pragmatic and constructive amendments that will not necessarily detain the Committee for terribly long. Their aim is simply to make clear that universities should be allowed to move events around the campus without cancelling them, on the grounds that it should be reasonable to move a controversial and possibly noisy event so that it does not occur, for example, next to an exam hall at exam time. It is reasonable to move an event so that it happens on a part of the campus that makes event management easier or so that it does not conflict with other events at the same time.
Some people may argue that these flexibilities might mean the surreptitious or indirect cancelling of events, but other parts of the Bill address this concern. Indeed, to pick up the point that the noble Baroness, Lady Chakrabarti, made earlier, in fact they may make it easier to invite people and expand the number of speakers invited to campus, knowing that these flexibilities exist. Per the rest of the Bill, universities and student unions would remain liable to sanction if they had in fact cancelled an event, not merely moved it, and the Office for Students would be able to respond to a complaint.
In a nutshell, these practical amendments that we hope the Government might consider as the Bill progresses would simply provide sensible if narrow discretion to universities and student unions to decide where and when events happen.
Lord Mann (Non-Afl)
My Lords, my Amendment 6 is on the same principle: unintended consequences. The Government would be very foolish not to listen in and to amend the Bill accordingly.
When I was a student leader, I had a range of tactics. With this Bill, I could put those tactics into play very easily. At the moment I go around a huge number of universities in another role; I was at one this morning. A week ago I was at a very prestigious one, in the vice-chancellor’s office. I did a recce in preparation and spotted a meeting room. If I was at that university, or knew someone in a society at that university—such as, let us say, the anarchist society—I would get invited there and, if I wanted to be disruptive, have a rolling meeting. The meeting would simply continue and continue. Some activists and campaigners would do that. They may not glue themselves to the door, because that would be criminal damage and they would be removed, but it would be possible to keep a rolling meeting going. I can recall one that was kept going for six weeks, not in the vice-chancellor’s office but in the registrar’s office. That is possible. I suggest that that would be an unintended consequence of this.
There are also groups that could get themselves invited in with the sole aim of maximising disruption, in order that they get their meeting broken up—in essence, they get thrown out—and then they can sue. This would be, by definition, extremist groups on the fringes. That would be, and has been in the past, a tactic employed. There was a whole period of time when various extremist activists were trying to do this. With this Bill, they would have a perfect opportunity. So this small tweak, giving that flexibility to a university, would have a profound impact.
There is one other good reason. If one wanted to be politically aggressive, when booking a room one could insist that an anti-Israel meeting, to use one example, was located in a room next to a synagogue or the Jewish chaplaincy. That would seem egregious to me. It could be—this happens a lot in the United States at the moment—directly in and among the Jewish student accommodation, the Hillel accommodation, which would be more than egregious. To give universities the flexibility for that bit of common sense, which they apply routinely in these isolated examples, would be a way of stopping those unintended consequences and would help the Government in their objective and their free speech proposals.
The Lord Bishop of Coventry
My Lords, I support Amendments 5 to 7 in particular. I shall follow on from the comments of the noble Lord, Lord Mann, because I had similar concerns about unintended consequences. I wonder whether your Lordships would mind me sharing some rambling thoughts that have come through my mind. I was not going to, but the reference by the noble Lord, Lord Triesman, to nothing before 1680—I think it was 1680—strengthened me.
In many countries in Europe, today is Reformation Day. I happened to be in Dresden yesterday, where you cannot help but see the statue of Martin Luther, which I was admiring. That is not irrelevant to these discussions. The history of academic freedom in Europe—freedom of expression and of religion—will have different views about the Reformation, but I cannot help celebrating the fact that, 500 years later, the Roman Catholic Church and the Lutheran World Federation said that they agreed over the doctrine of justification by faith, which was the great thing that divided the Churches at that time. As this fascinating debate has continued, I could not help thinking that, if there had not been a suppression of academic freedom at the time, there may not have been that great bust-up, which caused a lot of tearing to society and Church. I simply share that to reinforce that which we are all committed to—academic freedom and freedom of speech—and to recognise that institutions did not always get it right. Certainly, the Church has not.
I have quite a lot of sympathy for what the Bill is trying to achieve and welcome these amendments. The flexibility that they suggest would be very helpful. They work with the grain of the Bill in trying to encourage and enable robust and vigorous discussion and debate, and there are some sensible proposals.
My concern, perhaps slightly similar to that of the noble Lord, Lord Mann, was that an unintended consequence could be that spaces designated for pastoral, religious and spiritual needs might find themselves appropriated by bodies that would be offensive to those. I do not imagine that that was necessarily a concern of the noble Lords, Lord Willetts or Lord Stevens. I am really grateful to the Minister and his team for the discussions that I have had with him, particularly those assurances that I have been given that taking such steps as are “reasonably practicable” requires a careful consideration of how other legislation applies here, such as the public sector equality duty or the Prevent legislation. I would be very grateful for any further assurances that the Minister felt able to give.
I welcome that the amendments would provide the flexibility to help providers know that they were not cancelling a particular body because of its beliefs, even though they might be offensive to a particular body, but rather providing another space. I would also be very interested to hear any further assurances the Minister might be able to give on how guidance to the Office for Students on navigating some of these matters might be best given, and what other wisdom or what other bodies might help to advise on that.
Lord Grabiner (CB)
My Lords, on the point we have just been discussing, is this not a very good example of the kind of matter that could be very conveniently addressed in a code of practice? If the position is that some obviously controversial matter or speaker, whatever it may be, is in the first instance being located in an inappropriate place, this is a very good example of how that could be dealt with in a code of practice. We do not actually need primary legislation for this purpose.
Baroness Smith of Newnham (LD)
My Lords, I shall speak to yet another amendment from my noble friend Lord Wallace of Saltaire. I was reminded by the comments of the right reverend Prelate that I speak as a Catholic, so I am very glad that academic freedom has actually extended to Catholics: we were eventually emancipated and are now able fully to participate.
Amendment 24, from my noble friend and the noble Baroness, Lady Bennett of Manor Castle, is slightly different from the other amendments in the group. It would omit lines 30 to lines 34 on page 2. Again, it is a probing amendment to do with the costs that might fall on the provider. At present, the Bill says that
“the governing body of a registered higher education provider must secure that, apart from in exceptional circumstances, use of its premises by any individual or body is not on terms that require the individual or body to bear some or all of the costs of security relating to their use of the premises.”
How far are universities or, indeed, student unions expected to cover the cost of security? Do the Government think there is a limit to those costs? How do they view “exceptional circumstances”? Some clarification is needed on the expectations here, because although moving venues might be relatively straightforward and incur but a small cost for the education providers, providing security could prove prohibitive, certainly for student bodies. That then raises the question: if we are trying to enhance academic freedom but are then imposing costs on the providers, is there not a tension there? Have the Government thought this through?
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Baroness, Lady Smith, very briefly, and to speak to Amendment 24 in the name of the noble Lord, Lord Wallace, to which, as the noble Baroness noted, I attached my name. I guess this comes from personal experience, because as leader of the Green Party I only once had security guards shadowing my every move. That was at the 2015 general election on a visit to Exeter University. Our very new, very young Young Greens were suddenly told that they had to arrange security and had to find the money to do so. I think the reason may have had something more to do with the fact that, the previous week, Nigel Farage had visited the university under the same circumstances and the university felt that it had to apply the same rules to both. That is how the situation arose, but I am none the less acutely aware that that was a considerable impediment.
If the cost of security is laid on student bodies particularly, that may stop an event going forward. However, I admit some sympathy also with the earlier intervention in this group asking whether this is really the sort of level of detail the House of Lords should be debating, which goes back to the whole question about the Bill.
Lord Collins of Highbury (Lab)
My Lords, I welcome these amendments, because they probe the practical implications of these clauses. The noble Lord, Lord Grabiner, raised the point about the code of practice, and I was going to ask the Minister exactly how the code of practice in new Section A2 would cover the circumstances in relation to these amendments.
At the end of the day, as the noble Lord, Lord Mann, says, organising meetings has all kinds of implications for universities and colleges. Health and safety is a critical issue for the organisation of meetings, and the timing of meetings has employment issues, relating to staff and things like that. There is a whole range of practical issues that could result in having to say to the organisers of a meeting that they cannot have their meeting on that day or in that place.
The Minister may say that the code of practice referred to in new Section A2 talks about the procedures to be followed in connection with the organisation of meetings to be held on the provider’s premises. I want to know about the status of the code of practice and how the office of free speech will look at it. Are we going to end up with universities producing a code which fits all their requirements—health and safety requirements, employment law conditions, staffing issues, security issues and so on—then being tied up with people challenging it through the complaints process, saying, “They said that thing about health and safety as an excuse to ban us having a meeting on the premises.” I have heard it before. I have heard people say, “What has health and safety got to do with it?” or “Why should a maintenance staff member tell us to get out at 8 o’clock when I want to continue this speech and have this meeting?” There are practical implications.
How does a university know that the code of practice it adopts according to new Section A2 will meet the requirements? Will draft codes be circulated? What sort of advice and guidance will universities get—or are the Government simply going to say that this is all about what is reasonably practicable? I have heard those words many times in different contexts, particularly in terms of employment law and conditions. I hope that the Minister can reassure us on these probing amendments. Universities are independent bodies and should be able to manage their own organisation without the interference of outside bodies. I think this is a step too far.
Earl Howe (Con)
My Lords, the group of amendments to Clauses 1 and 3 tabled in the name of my noble friend Lord Willetts and spoken to by the noble Lord, Lord Stevens, seek to give higher education providers and student unions the flexibility to move events to alternative premises but not cancel them. The noble Lord, Lord Mann, has also tabled Amendment 6 to the provisions concerning premises.
Under the Bill as drafted, providers, colleges and student unions will already be free to move events to alternative rooms, should that be appropriate. The main duty of taking reasonably practicable steps to secure freedom of speech is linked to the provisions that are the subject of these amendments—those in proposed new Section A1(3). This means that the duty is to take reasonably practicable steps to secure that the use of premises, and the terms on which such use is offered, are not based on the ideas, beliefs or views of individuals or groups. The duty to take reasonably practicable steps therefore means that there is already flexibility.
In any event, a provider, college or students’ union is not required under the Bill to allow the use of their premises at all times and in an unlimited way. It is open to them to offer particular rooms for use by event organisers at specified times. As regards Amendment 6, Section A1(3)(a) refers to “any premises” but could refer to “premises” without changing the effect. It should also be noted that the relevant body can place conditions on the use of rooms.
In this context, it might be helpful to touch specifically on the point raised at Second Reading by the right reverend Prelate the Bishop of Coventry regarding concerns about the use of faith spaces. I was very happy to meet him some days ago to discuss this. The example given by the noble Lord, Lord Mann, of having an anti-Israel talk right next to Jewish premises, touches on a similar point. Sections A1(3) and (4) on the use of premises essentially replicate the wording of the Education (No. 2) Act 1986, referring to beliefs among other things in that context. As I said earlier, the provisions link back to the main reasonably practicable duty in subsection (1), so it is not an absolute requirement. I think that was an initial cause for concern on this point, so I am happy to clarify that. In fact, the “reasonably practicable” steps wording enables providers to continue to designate spaces for use by faith groups without any obligation for the provider to open those spaces up to other groups, whether or not they have conflicting ideologies.
Under the reasonably practicable steps duty, it would be legitimate for a provider not to offer a particular faith space to any group that wants to hold an event, but to offer another suitable space, thereby upholding the freedom of speech duties and preserving the integrity of the space set aside for the faith group. The legislation enables providers to respect the religious views of those with designated rooms, taking into account the duties under the Equality Act, while still complying with the freedom of speech duties. To pick up a point made by the noble Lord, Lord Grabiner, we anticipate that the Office for Students will publish guidance for providers on how to comply with the duties. We can certainly discuss this with the Office for Students to ensure that it covers this issue, which I hope will provide noble Lords with further reassurance.
I just say to the noble Lord, Lord Collins, that providers are already required under the Education (No. 2) Act 1986 to have a code of practice regarding freedom of speech. The Bill strengthens that requirement. Providers will now need to include a statement of values in their codes of practice that clearly sets out the importance of freedom of speech. Providers should be setting the tone and expectations campus-wide so that everyone is confident to express their lawful views and challenge received wisdom, even if their views are unpopular. Codes of practice will also need to set out the criteria that providers will use to make decisions about the use of their premises for events involving potentially controversial views, as well add the criteria for when exceptional circumstances may apply regarding the payment of security costs. The Bill strengthens the duty on providers already set out in the Education Act 1994 so that all students, not just those who are members of student unions, are made aware of the duties and the code. Once again, the Office for Students will give guidance on this.
Lord Triesman (Lab)
I want to go back to the noble Earl’s point on security costs. I would like to understand a little more what that might involve. My own experience, probably not wholly appropriate, comes from football. Inside many football stadia, including quite small ones, the clubs provide stewards. Sometimes, certainly outside, the police provide security, and sometimes, if it is called for, they also provide it inside. There is a huge argument about who should bear the cost of the police providing security, since it has an often quite considerable impact. In the event that internally provided security, whoever pays for it, is not adequate to the circumstances and the police are called in, who becomes responsible for the costs?
Earl Howe (Con)
Amendments 24 and 43, spoken to by the noble Baroness, Lady Smith, exactly address that set of issues, and I was about to comment on them. They concern the duty to generally bear the security costs for events. Understandably, the amendments probe how the costs of the provision of security for controversial meetings should be distributed among appropriate bodies. The duty on higher education providers, colleges and student unions is that they must not pass on some or all of the security costs to event organisers unless there are exceptional circumstances. The criteria for what are exceptional circumstances will depend on the nature of the particular body, and therefore must be set out in its code of practice, for the sake of transparency.
This element of the Bill is exceptionally important. We know that certain minority groups face serious security concerns when speaking on university campuses, as the noble Baroness, Lady Bennett, pointed out. My right honourable friend the Minister spoke in the other place about the University of Bristol students’ union imposing a £500 security bill on a student society in order to allow the Israeli ambassador to give a talk. This is simply not right. The cost of securing events should not stand in the way of people having a voice. The Bill as currently drafted protects these groups while also giving autonomy to providers, colleges and student unions to make their own decisions about what constitute exceptional circumstances. This drafting reflects that their resources are not finite and that there may be other relevant factors specific to that institution that will need to be taken into account.
The noble Baroness, Lady Smith, asked about exceptional circumstances and when costs can be passed on. We believe it is important that providers, colleges and student unions have the right to determine what constitutes an exceptional circumstance when considering who should pay for security costs of an event, taking into account, in particular, what is reasonable given their resources and other relevant factors. It is also important that the criteria they use are transparent, so that student societies are aware of them when they are planning an event. If costs are passed on to a student society and it considers that the criteria have been wrongly applied, it will be able to complain to the OfS under the new complaints scheme. Once again, we anticipate that the OfS will publish guidance on the content of codes of practice, including on security costs.
Lord Triesman (Lab)
When the police decide to intervene, it is often not because a host organisation decides that they should or invites them to. They make a judgment, as constables, as to what would constitute a way of securing a peaceful circumstance for the event or for the premises. Nobody knows that it is going to happen unless they decide to do it, and nobody decides who is going to pay for it in advance, but happen it does, and arguments about who should then pay for it occur. How would a code of practice deal with that?
Earl Howe (Con)
I am not sure I accept the noble Lord’s argument. If an event is properly planned—which it should be, particularly if it is sensitive or controversial—its security implications should surely be considered in advance. If it involves a police presence, that consideration should surely encompass the cost of that police presence. It would be a very remiss institution that did not look at the effects and requirements of the event in the round before it happened.
Lord Grabiner (CB)
If I may respectfully say so, that is a terribly important point. It is obviously critical that people give careful consideration in advance as to whether they are going to invite a particular speaker, or whoever it may be, to come along and speak. I made a note of what I regard as a rather important observation the Minister made a little earlier this evening; he said that there is no right to a platform. That is a very important point. If I may say so, it would be helpful to record that point in the code of practice in due course, because if at the outset the relevant university organisation can anticipate a problem, one way of resolving that problem, including the cost question, is simply to say, “There is no right to a platform and we are not going to invite this person to speak”. That also involves necessarily the proposition that each of the university institutions has a very good processing place for room booking and matters of that kind. That is a very important point. I respectfully suggest that the code of practice should emphasise the importance of that discretionary power, which would not give rise to any liability or obligation on the institution under the Bill, if and when it becomes legislation, and that institutions are free to say no from the outset.
Earl Howe (Con)
I am very grateful to the noble Lord; I will certainly take that point away and make sure that it is noted.
Baroness Smith of Newnham (LD)
Following on from the point made by the noble Lord, Lord Grabiner, could the Minister clarify how the Government envisage the duties in the legislation we are debating today and the Prevent duties? There is already a whole set of pieces of paper and so on that organisers of events in higher education institutions are required to fill in. Are we expecting additional work and additional documents, or would the same set of paperwork work for this legislation as well as for Prevent?
Earl Howe (Con)
We are coming later on to a group of amendments that could well encompass the noble Baroness’s question about the Prevent duty, but my answer to her now is that the planning of an event involves a number of considerations: the security costs; whether it impacts in any way on the Prevent duty; whether it impacts in any way on the public sector equality duty; and so on and so forth. This is a set of issues relating to an event that might be considered controversial that will need to be looked at altogether in the round. I cannot say whether there will be a separate set of papers, but if I receive advice on that point, I will certainly write to the noble Baroness.
To conclude, we want these provisions to offer a safeguard to groups that might come under serious security pressures, while also giving providers, colleges and student unions the independence that they need. I hope I have reassured noble Lords on these issues and sufficiently addressed the concerns raised.
Lord Mann (Non-Afl)
In not moving the amendment, I just say to the Government that sometimes, in government and politics, simplicity is best. If the word “any” stays in the Bill, people will read that and it will create additional conflict in advance for universities. I hope the Ministers will take that away and consider it.
Lord Sandhurst
“(5) A provider must—(a) take the steps set out at subsection (1) to secure the academic freedom of—(i) academic staff, and(ii) visiting speakers who are academic staff of any other higher education institution; and(b) not subject any member of academic staff to any detriment (including dismissal) through any act, or deliberate failure to act, done on any ground that the member of academic staff has exercised his or her academic freedom.”Member’s explanatory statement
This amendment seeks to extend academic freedom protection to academic visiting speakers, and to forbid outright any punishment of academics for lawful exercise of academic freedom.
Lord Sandhurst (Con)
My Lords, the importance of this amendment is to put the duties towards academic freedom on a rather different basis from those currently in the Bill. New Section A1(5) says:
“The objective in subsection (2), so far as relating to academic staff, includes securing their academic freedom.”
We want to secure their academic freedom, but that is—via new subsection (2) and then back to new subsection (1)—on a “reasonably practicable” basis, so it is not an absolute duty.
The effect of the amendment is, first, that:
“A provider must … take the steps set out at subsection (1)”—
which is a “reasonably practicable” duty—
“to secure the academic freedom of … academic staff, and … visiting speakers”.
That will remain on a “reasonably practicable” basis. But secondly, under proposed new paragraph (b), the amendment would
“not subject any member of academic staff to any detriment (including dismissal)”
and so on, and is subject to the “must” clause because it does not link back to new subsection (1).
The important essence of this amendment is to impose an absolute, rather than a “reasonably practicable”, duty not to dismiss or punish an academic for exercising his or her academic freedom. Without this amendment and this change to the structure, a provider could argue that continuing to employ an academic who has stirred things up and who is unpopular with activists would be impracticable. That would be particularly relevant, for example, where an academic is conducting or has conducted a line of research that is socially or politically sensitive so far as the end product is concerned, and where that research perhaps upsets existing social norms as well as academic norms. In the field of science, for example, one can think of genetics, sex, race or psychology. It can also be in political contexts.
Let us assume it is completely bona fide scientific research but of a novel line that has discovered things that upset people dramatically. There is then an uproar, and the university just says, “This is all too difficult—I’m afraid Dr X has to go”—and, actually, Dr X has been doing proper research subject to all the norms of academic freedom.
Lord Grabiner (CB)
Looking at proposed new subsection 5(a)(ii), I do not really understand why the noble Lord wishes to confine this to
“academic staff of any other higher education institution”.
A visiting speaker may not fall within that definition, but is nevertheless a person who in principle should be protected and allowed to speak, and have freedom of expression. I do not really understand why it is restricted in that way.
Lord Sandhurst (Con)
What we are concerned with in particular is people losing their employment, but I am happy to go further.
Lord Triesman (Lab)
My Lords, I wish to introduce Amendment 14. It touches on the kinds of concerns that the noble Lord, Lord Sandhurst, has just raised and it is, in my estimation, a kind of partner clause that I want to explore with your Lordships to the one introduced by the noble and learned Lord, Lord Hope of Craighead, at the very beginning.
One of the arguments I have tried to advocate to the Grand Committee is that, if this is to work at all, it must be felt to be under the ownership of the university and higher education world. For people to address a cultural problem, they need to get to grips with it. It is not about just processes and techniques—it is to do with very fundamental feelings. However many times references to academic freedom are made, if they are not made in a way which aligns with how the academic world and the academic community understand the meaning of those words, it is unlikely to take root and will not have that cultural impact.
That is why I have raised the question, which was also raised earlier by my noble friend Lord Collins, of the UNESCO normative instrument. This was a worldwide UNESCO conference, which adopted a worldwide definition of academic freedom which had been promoted by the academic world, the very people we are trying to address, as a definition to which they could all assent and which they would all defend. I make that point because, if we are to achieve success in this, we certainly want them to adhere to it and defend it.
The work was invited by UNESCO of a body that at that time I had the great honour to chair, which was the Association of Commonwealth Universities, an association of universities literally throughout the Commonwealth. It was drafted—some bits have been cited by my noble friend Lord Collins already—in the United Kingdom and Canada, and went through a very long process to try to make sure that this was the definition of academic freedom which the world of academics would feel was theirs.
If we had gone to UNESCO slightly earlier, the noble Lord, Lord Boswell, would have been the Minister. If it had been slightly later, it would have been the noble Lord, Lord Henley. As it happens, it was just after the general election of 1997 and, as a consequence, it was a Labour Minister who spoke to it. I make that point because there was never a cigarette paper—I know nothing about cigarettes, but the Committee will bear with me—of ideological difference between us about this. There were some differences around the world about it, and one or two nations—only one or two—declined to sign it, much to the annoyance of the rest of us. Saudi Arabia declined on the grounds that it covered women academics as well, and it did not accept that anything should be a right or privilege for women academics—no rights to academic freedom whatever. If we had included a clause restricting it to male academics, Saudi Arabia would probably have signed it as well. I just make the point that this was as close to universal as you could get in academic life where, believe me, getting universal agreement is very close to impossible.
The merit of that is that it provides us with a definition of academic freedom. It may be said that there are other definitions, but this provides us with one that the academic world itself formulated, adopted, approved and, with the exception of people who did not want women to be covered by it, was accepted by everybody. I should probably add that Qatar did not like it either for the same reason, but none the less, all the rest of us did. I commend it to the Government because, if the Bill is to become law—we have expressed our anxieties about whether it is the best way forward, but it may very well do; it is government-backed legislation, after all—I appeal to them to try to ensure it brings along everyone, because short of that, its prospects in practice are very poor.
That is why I provided a small history. As it turns out, it was engendered in the Commonwealth, in institutions with which we are probably all very familiar, against the background of a set of values with which we are all familiar and opposed only by people who, if I may say so without being unnecessarily unkind, do not share some of those values at all. Aside from having the assent of the academic world and being still referred to and related to by it, it establishes in a way we would all want that if people want to get up within the law to make controversial, difficult, unpopular or any other kinds of propositions and speeches in the academic world, it is a global right to do so, signed off by the first signatory to it, the United Kingdom.
Baroness Fox of Buckley (Non-Afl)
I shall speak to Amendment 17 from the noble Lord, Lord Strathcarron, to which I have put my name. The amendment strenuously argues that the Bill needs to make it explicit that expressing opinions about any registered HE provider, including opinions on its “curriculum, governance, affiliations”, “teaching” and so on, will be protected by the Bill. Specifically, I want to look at a new challenge to academic freedom in relation to institutional values.
I do not know whether noble Lords saw a remarkable interview over the weekend with a couple of women, Carole Sherwood and Amy Gallagher from the Tavistock clinic. For once, this is not in relation to the gender issue and the Tavistock. One of the women had refused to accept as fact a critical race theory definition of racism as white privilege. Remarkably, the people who were teaching her in front of classes said that she would be denied her psychotherapy qualification because her views were not in line with the Tavistock’s values.
This is becoming a clearer problem that we face, because universities, or their HR and management, are signing up to third-party bodies, which then sign the universities up to values and priorities that might well be at odds with the views of academic staff. Obviously, the infamous example is Stonewall’s diversity champions scheme, but more recently it has come to light that Advance HE’s race equality charter is having the same impact. That charges universities a fee to provide advice and training to audit the university’s anti-racism strategies, themselves formulated around Advance HE’s guidance—you can get bronze and silver certificates and so on along the way. Advance HE encourages universities to highlight their race equality scores in their marketing. Arif Ahmed, lecturer at Cambridge, who has been quoted a lot today, thinks that the charter encourages what he says is virtue signalling competition between universities. I give credit to Dr Jim Butcher from Canterbury Christ Church University in Kent and the campaign group Don’t Divide Us for bringing this to light.
Obviously, we can assume that 99.9% of students and lecturers consider themselves to be anti-racist. The problem is that regardless, this is a very particular version of what constitutes anti-racism. Advance HE’s training argues that the curriculum has been corrupted by western ways of knowing; that our attitudes are shaped by whiteness. It is a version of critical race theory that says that inequality persists even in the context of formal equal rights. That is fair enough, but when it asks that question it gives some at least contentious answers, such as that unequal treatment is a product of white supremacy.
Of course academics and students should be free to hold any of those views—I am not one of those who think that critical race theory should be banned from the university, especially in the context of being a champion of academic freedom—but the problem is that when universities give CRT explicit institutional backing, that means that any academic who doubts the salience of white privilege theories or disagrees with the demand, for example, to decolonise the curriculum not only is arguing against a body of thought but ends up arguing against their employer, which puts them in a very difficult position. We have to be very clear that one should be able to argue against one’s employer or these theories, and we should not be in a situation where somebody is denied a qualification on the basis of the values of the university, which is imposed from the top down and which one is not allowed to query.
I also want to mention some qualms I have about Amendments 15 and 16, which have not been argued for. They attempt to hem in a definition of academic freedom into areas of expertise and professional responsibilities. In particular, Amendment 16 wants to remove
“and controversial or unpopular opinions”
because, as it says in the notes, they have no roots “based on evidence”. I query that, because it is very important that we have a sense of academic freedom here that is much broader than the narrow confines of one’s academic expertise. Actually, the Government did listen on this: I think they had “professional expertise” in and they have taken it out. I do not want to see it being brought back in.
Baroness Bennett of Manor Castle (GP)
My Lords, I rise very briefly, because I think Amendment 14, in the name of the noble Lord, Lord Triesman, gives us a very interesting, powerful and effective way forward. Like the noble Lord, I retain concerns about whether the Bill should be going forward at all, but if it is going to, to use a long-accepted international definition seems to take us somewhat in the right direction.
The stress in that UNESCO document on freedom from institutional censorship brings up some very powerful examples. I thought of some of our universities which have, I am afraid, accepted large sums of money from very dubious state bodies from around the world, where some academics have perhaps found themselves under pressure not to produce research or make comments critical of those authoritarian regimes. I also very much thought of a whole series of papers I have just looked at, all published in 2018, in the International Journal of Risk and Safety in Medicine, the American Journal of Industrial Medicine and the Journal of Public Health Policy, all of which address Monsanto’s influence on academic research and publication around the pesticide glyphosate, and all of which were published by different authors—none of the authors’ names are shared. For example, one paper revealed that Monsanto sponsored the ghost-writing of articles in toxicology journals and interference in the peer review process.
I retain all those concerns, but I think the noble Lord, Lord Triesman, may have found us a very useful potential way forward here.
Baroness Smith of Newnham (LD)
My Lords, I think my noble friend Lord Wallace’s amendments here speak directly to some of the points raised by the noble Baroness, Lady Fox. My noble friend’s Amendment 13 states:
“Page 2, line 12, after ‘wisdom’ insert ‘within all fields covered by their professional responsibilities’”.
That could be taken by the noble Baroness, Lady Fox, as a way of narrowing the legislation again. It is really intended, if not quite as probing, to try to understand the Government’s understanding, in this legislation, between academic freedom and freedom of speech for academics. Is it to be only within the confines of their own discipline, or is it to be anything within the academic sphere? The parallels are in other professions, where people might have their own standards, so Amendment 13 is to try to understand—
Baroness Smith of Newnham (LD)
Sorry, Amendment 15. This just demonstrates that the profession I need to go to is my optician, which kindly cancelled my appointment.
Amendment 15 is very much to think about to what extent this is about particular academic standards. I suggest that it is in effect probing, although my noble friend does not say that.
The next amendment, which I think we all take as being Amendment 16, is to omit
“and controversial or unpopular opinions”.
This is not necessarily to say that these things should not be there, but in the debate on an earlier group of amendments the Minister pointed out that beliefs and views are not the same and that beliefs are protected under the Equality Act. But then there is the question of where we put unpopular opinions. They are not beliefs. Are they views? Should they be in there? My noble friend’s question here is about whether we should expect academics to put forward views based on evidence. Here the noble Baroness, Lady Fox, has a point, because while we would expect to look for evidence, at some point in the intellectual journey you might be looking for evidence and not yet have found it—but presumably we would want the views that academics espouse to be at least based on something that goes beyond the whole QAnon idea of fake news and invented facts. Do the Government have a view on that?
In Amendment 20, my noble friend is again concerned about practicality. To what extent should the Government expect to be involved, or expect the law to be involved, in the way higher education institutions are engaging in promotion and looking at the way people are appointed within higher education institutions? We are not necessarily suggesting in any way that people’s jobs should be put at stake, or indeed that they should not be promoted, but this is a probing amendment to understand how far this legislation is intended to go.
Finally, I suspect the last word from me today is on Amendment 23, also in the name of the noble Baroness, Lady Bennett of Manor Castle. Again, to what extent can the Government and the law be involved? What is the Government’s intention here? How far do they intend to interfere further in higher education institutions?
Lord Johnson of Marylebone (Con)
My Lords, I share the concerns of the noble Baroness, Lady Fox, around Amendment 15. I was quite pleased when the Government removed this language at an earlier stage of the Bill’s proceedings. I have concerns about it on a number of levels, but I shall focus on just two of them.
First, I think it would be potentially a big brake on the development of greater interdisciplinarity in academia. The ability of people to work across disciplines is vital to our ability to make progress on some of our biggest challenges as a society, climate change among them but far from the only one. Requiring academics in effect to stay in their lane would be a big brake on that and stop a lot of creative thinking. Research suggests that at the moment the most impactful science is happening at the margins of disciplines, when people take the courage to work with their peers in other disciplines and to think about the shared learnings and transferable skills they take from one academic discipline into another. If the Bill inadvertently sent out a message that this was epistemic trespass, it would be very bad for the quality of our science.
Baroness Smith of Newnham (LD)
Sorry, it is me again, but this is me as myself. Can the noble Lord explain why it is different for academics working at the margins of their fields but not experts in other fields, whose rights will not be protected by the Bill but who might also be contributing meaningfully to further research and pushing the boundaries of knowledge?
Lord Johnson of Marylebone (Con)
I think there is a marketplace in ideas—maybe I am not answering the noble Baroness’s question as she might like. Good ideas stand the test of time, they get picked up by other academics, they get cited, and that whole process of establishing which ideas are good and which are not is pretty effective and works well. The charlatans, the snake oil peddlers and the bullshit artists find that their ideas will not get repeated endlessly and established in the canon of good academic practice.
My second reason for questioning whether it will be sensible to reintroduce this language into the Bill is that I simply do not think it is practicable in any meaningful way. Who is to police the boundaries of someone’s academic expertise? Who is to stand in judgment and say, “You’re qualified to have an opinion”—unpopular or controversial—on a particular subject? I simply do not see that as viable, so I am very hopeful that the Government will not relent and let it back in.
Baroness Falkner of Margravine (CB)
I apologise to the Committee because I was unable to be here for Second Reading, so I come a little late to it. Nevertheless, it is a pleasure to follow the noble Lord, Lord Johnson, because I share his views on Amendments 15 and 16, but I will also speak in opposition to Amendment 17. He is quite right to say that they would diminish academic freedom. I refer particularly to the humanities and social sciences, although I think he was referring to “the sciences”. It is frequently the case that over a 45 or 50-year academic career someone will follow a particular discipline for, let us say, a decade or two, and then find themselves, as science and research continue, to have something to say about something else and to shift.
For example, somebody mentioned an international relations scholar—I am married to one—moving into historical research. It would dampen and diminish academic freedom, rather than enhancing it, so I certainly oppose Amendment 15 on those grounds. There is one other ground. I think that this year we are coming out of the 50th anniversary of Thomas Kuhn’s work on paradigm shifts, The Structure of Scientific Revolutions. That provides all the evidence we need that discovery does not move in a linear fashion. It does not have an end goal that you can arrive at. Ideas change, shift and adapt, and that is how new paradigms come about. I do not want the Minister to give way on those grounds.
The noble Baroness, Lady Smith, also wanted to know from the Government about beliefs and opinions and where the boundary lies. I suggest that the boundary lies in a tribunal in interpreting whether beliefs or opinions can be deemed to be protected characteristics. Because I have touched on protected characteristics, perhaps I need to declare that I chair the Equality and Human Rights Commission—to get that on the record—although I am speaking to the amendments in a personal capacity.
Baroness Fox of Buckley (Non-Afl)
I completely understand the noble Baroness’s point about terms and conditions. That is perfectly reasonable in terms of employment law, but what we are talking about here is the danger of the phrase “bringing an institution into disrepute”, which has been used by universities when people are accused of being, for example, transphobic. First, “disrepute”, in one of the amendments, is a very slippery word, as somebody said. Secondly, I was trying to draw attention to the fact that a lot of the new ways that universities are operating were never part of the terms and conditions that somebody signed up for, and academic freedom is something that you might expect of a university.
There has been a lot of talk about Oxford and Cambridge. Would a Cambridge academic not be able to criticise Cambridge University for its failure to, for example, maintain academic freedom? Is the noble Baroness suggesting that that would breach their terms and conditions, that it is egregious and that they should not be allowed to do that? It seems to me that that kind of freedom to criticise is very important.
Many years ago, I fought a strike and won, where they tried to impose on a further education college that we would never criticise what was happening in the college. It was seen then as an attack on our freedom to talk openly about education. Suggesting that if you are an academic you are going to go out and slander the college is completely different from what we are really talking about here, which is the open ability to be able to criticise when you are being clamped down on, often in free speech terms.
Baroness Falkner of Margravine (CB)
My Lords, I shall just deal with that. I am aware of very vigorous debate at Cambridge University, but I am not aware of the university having fired an academic for standing to defend free speech. In fact, most of the arguments at Cambridge currently are about academics who are standing up and saying to the former vice-chancellor that the current vice-chancellor is going to go and spend more time with his family and that they have had enough of him, more or less.
To my mind, the Bill could have been written in three pages. It almost goes into micromanagement of higher education institutions—autonomous institutions, we have to remember. To my mind, it makes a bit of a meal of a problem that I completely accept exists but could have been addressed in a slightly more constrained fashion. All the debates I have heard, and I read the Second Reading debate, had more and more people wanting to hang baubles on to the Bill to essentially make higher education institutions non-autonomous and to put them into a straitjacket whereby there will be a deeper constraint on free speech.
We will come to Clause 4 next time, on Wednesday or whenever, and we can talk about that then. It is a relatively good and carefully drafted Bill. We run the danger of adding so much to it—and it comes, as I said, on the back of several previous higher education Acts—that we will end up with the opposite of what we wish to see.
Lord Moylan (Con)
My Lords, I shall speak briefly in support of the noble Baronesses, Lady Fox of Buckley and Lady Falkner of Margravine, and my noble friend Lord Johnson of Marylebone in opposing Amendment 15. The noble Baroness, Lady Falkner, referred to the 50th anniversary of a seminal book. I think it would be odd if we got through a debate on universities without referring to the fact that it is roughly 170 years since Cardinal Newman published his lectures, known as The Idea of a University, probably the first attempt in the 19th century to define what a university looked like and what it was for. I have a familiarity with every single line of that book because, when I was a schoolboy, I proofread the standard current Oxford authoritative edition for its editor, Father Ian Ker. Indeed, a very minute examination of the acknowledgements would reveal that to be the case.
We are discussing this in a very modern way, but there are two things we can take away from Newman that really are very important and relevant to this amendment. The first is that the word “university” implies universal; that is, there are no bounds on the fields of inquiry to which a university can go. The second is that, for Newman, this is a collective endeavour. We are discussing this as if the advancement of knowledge was to be followed only by individuals with specific expertise in certain areas, and as if the sharing and communication of knowledge among them—be it through papers, through social engagement or simply through having dinner together and discussing things—was not a crucial part of that endeavour. I simply urge those two points at this stage. It seems to me that Amendment 15 is wholly misconceived as to how knowledge is advanced and what a university actually is and should be.
Baroness Garden of Frognal (LD)
My Lords, Amendments 15 and 16 were probing amendments, so I do not think my noble friend Lord Wallace will be totally mortified to discover that the entire Committee is not in favour of them.
The Earl of Leicester (Con)
First, I apologise for not attending Second Reading; I could not be here. I shall speak very briefly against Amendment 16 because I think it is very dangerous to leave out “controversial or unpopular opinions”. Newton had a particularly controversial opinion, Einstein too, and Galileo’s opinion on Copernican heliocentrism, which for you and I is the earth rotating daily and revolving around the sun, was met with opposition by the Catholic Church; he was tried under the Roman Inquisition in 1615 and spent the rest of his life in house arrest. To suggest that we remove the words “controversial or unpopular opinions” is, I think, very dangerous.
Lord Strathcarron (Con)
My Lords, I speak to my Amendments 17, 18, 19 and 21. We have already debated Amendment 17 at some length. I hope that Amendments 18, 19 and 21 are uncontroversial; I merely hope to tighten up and future-proof for anything that comes in the future. I believe that they address some concerns raised in an earlier group by the noble Lords, Lord Collins of Highbury and Lord Triesman, and the noble Baroness, Lady Fox of Buckley, and I hope they prove agreeable.
Baroness Thornton (Lab)
I briefly say that I think the noble Earl has three things he needs to address in this group of amendments. The first is academic freedom, which has been referred to before. My noble friend Lord Triesman has brought to the Committee an amendment that deserves consideration, because I think it helps us. The second issue has created quite a discussion—what is the interface between the terms and conditions, the values and employment of an academic and their speech? I am not going to comment on that, frankly; the noble Earl is going to have to tell us what the Government think about that. The third issue, of course, is whether the other issues raised in this group affect the practicality and appropriateness of universities’ appointment procedures. I am not sure at all that that is the case. Those are the three issues I think the noble Earl will have to address, probably the next time the Committee meets.
Higher Education (Freedom of Speech) Bill
Wednesday 2nd November 2022
(2 years, 1 month ago)
Grand CommitteeRead Full debate Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 30-II Second marshalled list for Grand Committee - (31 Oct 2022)
Earl Howe (Con)
My Lords, as the Committee will be aware, our debate on Monday on academic freedom and associated issues was paused following the contribution of the noble Baroness, Lady Thornton. I should now like to pick up the various strands of that debate and respond to questions and points raised by noble Lords.
Amendment 12 from my noble friend Lord Sandhurst and the noble Baroness, Lady Fox, seeks to ensure that the academic freedom of visiting speakers is protected under this Bill, and that academic staff suffer no detriment because they have exercised their academic freedom.
First, on visiting speakers who are academic staff elsewhere, I assure the Committee that the Bill as drafted already protects such individuals, but as visiting speakers, rather than as academic staff. The protection of academic staff in new Section A1(7) makes clear that the protection is from losing their jobs or privileges at the provider, or from the likelihood of their securing promotion or different jobs at the provider being reduced. In other words, it is effectively dealing with an employment situation. Such protection would not make sense in the context of an academic speaker who works at another institution. This does not mean that the protection is less for such a visiting speaker, but it is different in nature because of the different relationship of the speaker to the university.
As for prohibiting detriment, the amendment would not allow for any circumstance in which the exercise of academic freedom could result in detriment imposed by the provider. It should be noted here that academic freedom enjoys a special status, reflecting the high level of importance that the courts have consistently placed upon it in the context of the right to freedom of expression under Article 10. However, an outright prohibition of detriment against an academic because they have exercised their academic freedom can be right, as there may be circumstances that mean that action by the provider including dismissal is the right response. If an academic has breached their employment contract or broken the law in some way, they cannot rely on a claim of academic freedom to avoid all consequences.
Amendments 14 and 17 seek to amend the definition of academic freedom in new Section A1 specifically to protect an academic’s freedom to criticise an institute at which they work and other activities included in the UNESCO recommendation of 1997. The UNESCO recommendation refers to
“the right, without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies”.
Let me make it clear that the definition of academic freedom as currently drafted already covers the questioning and testing of received wisdom, and the putting forward of new ideas and controversial or unpopular opinions. This speech is not limited to particular subjects, so it would include speech concerning the institute at which an academic works.
I turn to the UNESCO definition. The Bill as drafted also protects the right to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, as I have already said, and freedom from institutional censorship. However, as for freedom to participate in professional or representative academic bodies, academic freedom as defined in the Bill is a specific element of freedom of speech overall. The Bill covers verbal speech and written material but does not cover the act of affiliating with or joining an organisation. I was already aware that this is an issue that the noble Baroness, Lady Falkner of Margravine, was interested in as chair of the Equality and Human Rights Commission, so I am glad to be able to put that on the record.
Amendment 15, tabled by the noble Lord, Lord Wallace of Saltaire, and spoken to by the noble Baroness, Lady Smith, distinguishes between freedom of academic speech within the academic context and freedom of speech for academics and other citizens within the wider public sphere. It is important to state first of all that academic speech is protected under the Bill as part of freedom of speech more generally. The protection is the same for academic staff as compared to other staff and students, but the Bill makes clear that academics should not be at risk of losing their jobs or privileges or of damaging their career prospects because of their speech.
The amendment is similar to a previous provision in the Bill that set out that academic freedom under the Bill meant freedom of academic staff within the law and within their field of expertise. The Government listened carefully to the issues raised during the passage of the Bill in the other place, noting the concern that the definition of academic freedom was too narrow. In fact, the provision was a reflection of Strasbourg case law, and we were clear that it should be interpreted broadly, but we wanted to avoid any perception of such a limitation. We therefore decided that it would be appropriate to remove the “field of expertise” provision, which I think was a widely appreciated outcome. I hope the Committee will appreciate that explanation of how the definition of academic freedom in the Bill has developed.
Amendment 16 seeks to remove from the definition of academic freedom the reference to “controversial or unpopular opinions”. The purpose is to understand whether, where such opinions are not based on evidence, they should be included in the protection of academic freedom. The Bill builds upon the definition of academic freedom that already exists within the Higher Education and Research Act 2017. That definition goes back at least as far as the Education Reform Act 1988, so it is a long-standing one, and it includes the freedom to put forward controversial or unpopular opinions. Academic staff in our universities should feel safe to put forward controversial or unpopular opinions and ideas, whether or not they are based on evidence.
As I said at Second Reading, free speech is the lifeblood of a university, allowing students and staff to explore a spectrum of views, engage in robust debate and pursue their quest for knowledge. Limiting freedom of speech to areas that are not controversial or unpopular would make the definition of academic freedom in this context anodyne and narrow. Equally, limiting freedom of speech to areas that are only supported by evidence would unnecessarily narrow the scope of academic freedom under which academic staff should be free to roam the full spectrum of knowledge and ideas.
Amendment 18 seeks to ensure that an academic is fully protected from adverse consequences to their job, privileges and career prospects. The current drafting of new Section A1(6) refers to the risk of being adversely affected. This covers both the risk of adverse effect and the actual adverse effect, since in the latter case the academic must first have suffered the threat before the occurrence. Accordingly, should a member of academic staff find themselves actually adversely affected as a result of exercising their freedom of speech—having lost their job, for example—they would be covered by the academic freedom provisions of the Bill.
Amendment 19 seeks to add further protection for academic staff from the risk of losing responsibilities or opportunities. I assure noble Lords that the Bill as drafted would already protect an academic from such a risk. First, in addition to the wording relating to privileges, there is already reference to the risk of losing one’s job or the likelihood of securing promotion or a different job being reduced. More importantly, I want to be clear that academic freedom for the purpose of the Bill is considered to be a subset of freedom of speech—a distinct element with particular considerations, within that broader concept—so the main duty to take reasonably practicable steps to secure freedom of speech includes the duty to secure academic freedom. If a person suffers loss as a result, whether because of their academic freedom or freedom of speech more widely, then they can seek recompense through the new complaints scheme or, as we shall discuss later, using the tort.
Amendments 20 and 23 in the name of the noble Lord, Lord Wallace of Saltaire, are, as was explained, intended to probe the practicality and appropriateness of the intrusion of the Bill into university promotion and appointment processes. It is important that the Bill’s definition of academic freedom goes beyond referring to the risk of losing one’s job or privileges and that it should also cover applications for promotion or another job at an institution. This is not currently covered by the existing legislative definition of academic freedom. An academic should not be held back from progressing their career within a university because they have questioned or tested the received wisdom, or put forward new and unpopular or controversial ideas. It is vital that academics can research and teach on subjects and issues that may test the boundaries, otherwise our higher education system would wrongly be limiting itself, which would disadvantage everyone.
Equally, this protection should not be limited to jobs within a university, otherwise academics may find it hard to progress their careers by moving to another institution. That is why we are applying a similar measure of protection to external applicants for academic appointments. The Government believe that freedom of speech in the context of higher education is so important that the provisions set out in the Bill that will apply to the promotion and appointments process are indeed appropriate and necessary.
Amendment 21 seeks to protect academic freedom under the Bill, regardless of the potential consequences for the reputation of the provider. The approach taken in the Bill is to impose a duty on providers to take reasonably practicable steps to secure freedom of speech within the law, including academic speech. A new aspect of this duty is that they must have particular regard to the importance of freedom of speech when considering what steps are reasonably practicable. The requirement to have “particular regard” to the importance of freedom of speech could, in a particular case, prompt a provider to prioritise freedom of speech over another right. However, this would remain subject to its assessment of what is reasonably practicable, and would need to be lawful. This test emphasises the significance of freedom of speech within the law and the need to protect it, where it is reasonably practicable to do so.
I come back to a point I made on an earlier group. Nothing in the Bill prevents a provider looking at the statements or utterances of an academic and considering whether that individual has adhered to their employment contract, whether he or she is upholding accepted academic standards and/or the values and reputation of the department and the university. Again, the reasonably practicable test allows for case-by-case decisions to be made, taking account of all the relevant factors. But it is important to recognise that a provider in this context is an employer, as I said, and that will give them the right to go through the deliberative processes that I have just outlined.
In conclusion, I hope my remarks have provided noble Lords with reassurance that the Bill, as drafted, is sufficient to protect academic staff in exercising their academic freedom
Lord Sandhurst (Con)
My Lords, I am grateful for the Minister’s observations. I listened to his assurances and the issues he raised with interest. I would like to consider them carefully before Report. For now, I beg leave to withdraw the amendment.
“(ca) an explanation of how to guarantee freedom of speech while fulfilling the provider’s duty of care for all students, academics and staff,”
Lord Mann (Non-Afl)
My Lords, in moving Amendment 29 I shall speak to the three amendments in my name; they are identical in wording and impact but are in different parts of the Bill. I do so having personally met, on this related issue, the majority of university vice-chancellors across the United Kingdom over the past two years in advance of the Government’s decision, made by the then Education Secretary, to write to universities asking them to adopt the internationally recognised definition of anti-Semitism and build it into their workings. I have been delivering on that successfully across the vast majority of universities across the UK; that work continues.
I want to highlight some examples of why a duty of care is an essential element of strengthening free speech, not as a balance but as an addition. The principle behind it is very straightforward. I referenced the international definition of anti-Semitism because the argument falsely put by a number of people against it was that it aimed to restrict academic freedom and what people said, particularly in relation to Israel. That is factually and practically untrue. There are no examples of where that has happened. It is neither designed nor written to do so. The reason I have needed to meet so many vice-chancellors, and others at the top of universities, is to ensure that they understand what it means and what it does not mean so that they can apply it appropriately, and so strengthen freedom of speech.
If I may, I will give a couple of examples of where the duty of care comes into its own. A famous filmmaker and political activist, Mr Kenneth Loach, was invited to speak at his old college, St Peter’s College, Oxford. A number of the Jewish students in the college were unhappy at Mr Loach’s previous commentary in relation to the Jewish community. That was their perception and, using traditional student language, they suggested that he was not welcome in their college.
There was a complication, as this was during Covid. What normally would have happened is that Mr Loach would have appeared, and there would have been a noisy protest to signify to him that he was not welcome by a number of the students because of what he had said, and he then would have spoken and life would have moved on. Here, because it was online, the university failed to find a way for those students to register the protest that would have happened in real life. This illustrates brilliantly that one person in that situation had free speech and others objected, but what they required, and are entitled to, was the ability to have their speech; that might have been through a protest—very traditional in student environments—or a countermeeting, but they have an equal entitlement to free speech.
Take that instance as an example. What might a university do now? If that meeting had been timetabled for a Friday night, it would have inhibited the ability of any religiously observant Jewish student to participate in a protest or countermeeting, and so their freedom of speech would have been inhibited by the timing. If the meeting had been located in St Peter’s, that would have been neutral territory, but if it was located, say, next to the Jewish chaplaincy, there would have been an increased aggravation on behalf of those Jewish students, and the protest would perhaps have been wider and stronger. That might suggest that Mr Loach’s freedom of speech, which was not in itself being challenged, would be an impingement if the location of the meeting had been somewhere that was seen to be hostile to a section of the community—in this case, the Jewish students. The publicity for the meeting was “Ken Loach speaks on whatever”, but if it had included swastikas on the head of the Prime Minister of Israel or on the Israeli flag, there would have been an increased incentive for people to shout loudly in protest and demand that he did not speak.
All of that would fall into the category of a sensible duty of care to those students, so that their ability to have their freedom is equal to that of someone who they regard as a controversial speaker—not to restrict the content of what Mr Loach would say, to break up the meeting or to prohibit his right to speak or someone’s ability to invite him. That is an example from before this Bill came forward, but one whereby, if the principles of the Bill are got right, then two sides in an argument can have equal freedom of speech. They may not all be 100% happy but everyone can have their say.
I will give another, more vivid example. I will not give too much detail but it is a real example. Let us say that a convicted terrorist is allowed into the country. I have the ability to go to the Home Secretary—and I have occasionally done so—to say that this person should not be allowed in because they are a threat. If they are allowed into the country, by definition—even if they have served a prison sentence as a convicted terrorist—they are able to speak, including at one of our universities. What happens if a student at that university is the cousin of one of the people murdered by the group of which the individual who is about to speak was a member when the terrorist outrage took place? So we have a student, in this case a Jewish student, whose cousin was murdered, and a member of the group convicted and imprisoned for that offence—with no argument or ambiguity about that—is speaking. Here, the Jewish student demanded that this convicted terrorist not be allowed to speak.
I have argued, previous to this Bill and now, that freedom of speech is absolute; the person is allowed to speak. But there is clearly a duty of care on a university when you have at least one student extremely distraught, for rational reasons, about somebody who was involved in the murder of their cousin speaking in their university. That is not to say that we should ban, stop or restrict, but we must make sure that that student also feels empowered in the situation—perhaps they want to be part of a protest or have a countermeeting. They may need other welfare support in that context. That strengthens freedom of speech; it does not contradict or balance it. This is not a balancing act—it is about everyone having the right to freedom of speech.
I will give a milder example. In the last week I met the vice-chancellor of a university, one of whose very good policies—I will not embarrass or praise them, however you judge it, by naming it—is that all of its academics have been told that it is unacceptable to use the term “Tory scum” in their lectures. It is being directed at government Ministers primarily, whom they clearly oppose on various grounds. One can envisage what might be going on there. The reason this has been done by that vice-chancellor, with due regard to great and wonderful government Ministers, is not the sensitivity of government Ministers but the result of going through the process of thinking through the duty of care. If you were an 18 year-old Conservative-supporting student in that lecture, perhaps in your first term at university, you might be listening to lecturers calling one of your favourite Ministers “Tory scum”.
That is a milder example, but it shows rather good practice. If one wants to put an argument against the Government, turning to abuse to do so is not very effective. It becomes a weaker argument. The student in that position perhaps thinks—I am not making a political point—that there are not masses of Conservative students in solidarity with each other, certainly not in their first year, in certain courses at certain universities. The likelihood is one Conservative-supporting individual among a cohort who they might think are not—who might be delighted at such language and want stronger. But their rights to be empowered are equal. A simple duty of care there does not restrict free speech but improves it.
I will give a final example. A lecturer makes a controversial speech and then, as is very common, there is an immediate external pile-on. The same thing happened to the Jewish students I mentioned in regard to Mr Kenneth Loach. They protested; they were not trying to block him but some of the language used—“We don’t want him in our university”—implied that they were. That was not what they were trying to do, but they got some horrendous anti-Semitic abuse, almost exclusively from people outside the university, because they had dared to challenge Mr Loach.
In this case, a lecturer made a speech which did not appear that controversial when I read it but was deemed so by some. There was a huge email pile-on against the university, attacking that lecturer. The university did not, shall we say, handle it very well. Again, there is a duty of care to the individual. It is one thing to have the right in law to freedom of speech, but the consequences of the speech can be that some people are greatly distressed by the content, or that the speaker is then targeted and needs some support.
Some people—politicians in particular—can thrive in the adversity of debate, but others are more normal human beings. If they are getting abused by thousands of people, or thousands of people are demanding their sacking because they have said something, their reaction will be different. This is not a case in the public domain but one that I am very familiar with; I am happy to give the Minister private detail on it if he wishes. I could go on to give lots of other examples but this is sufficient to make my point.
Baroness Falkner of Margravine (CB)
My Lords, first, I want to refer to the remarks of the Minister to clarify something; I have not had the opportunity to look at Hansard immediately since he spoke on the previous group of amendments. I think I said on Monday that I was speaking in a personal capacity. The Minister has put on the record that I chair the Equality and Human Rights Commission. However, I was not speaking as the chair of the Equality and Human Rights Commission, but in a personal capacity.
The reason this is important is because I have taken advice from the Registrar of Lords’ Interests. As the commission’s powers in terms of protected characteristics are so wide, I would be able to say almost nothing were I to adhere to his advice that I should not speak on anything where the EHRC has a policy. For the rest of this debate, to put that correction on the record, I would like to make it clear that I will speak only as chair of the Equality and Human Rights Commission when I specifically say so in my opening remarks, and I will always tell the Committee that I am speaking in a personal capacity when I so do.
I would like to speak in a personal capacity to warn the Grand Committee to be extremely careful about the amendment from the noble Lord, Lord Mann, which seems on the face of it to be perfectly reasonable. We do not need to be concerned about his perfectly valid and good intentions, but his peroration has made one extremely concerned about what he would expect to happen through that amendment. The noble Lord referred to the fact that the opponents of a speaker have an equal right to protest or drown out what is being said. He says that their right to be empowered is equal.
Lord Mann (Non-Afl)
I am absolutely categorical that the drowning out and breaking up of a meeting would not be acceptable in a democracy, but the right to have a counter-speech or a protest is a fundamental part of democracy.
Baroness Falkner of Margravine (CB)
I think the noble Lord does not quite appreciate how qualified Article 10 rights are under the European convention. It clarifies:
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.
It goes on to say that those rights can also be circumscribed
“for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others”.
The point here is that they are qualified. The judgment of qualifying those rights, and making decisions about when the qualifications will apply, should rightly lie with the provider and not necessarily be set out in legislation.
The noble Lord referred to the duty of care to students. Of course there is a duty of care to students, but providers have been delivering those duties of care to students, academics and staff throughout this period. There is no evidence to say that they are not capable of doing that, so we can move forward with the Bill.
As I said on Monday, my personal view is that, although the Bill is significant and important in setting out more clearly the importance of differing opinions and viewpoints, the danger we run here is of it leading to so many changes that it actually succeeds in suppressing speech. No one has a right not to be offended. We are in danger of conflating that right not to be offended with safeguarding rights or hurt or distress, which is where we might go were we to pursue this amendment.
Lord Grabiner (CB)
My Lords, I will be brief. In his remarks, the noble Lord, Lord Mann, gave some extremely significant examples. Some very bad stories are no doubt out there but, with great respect, might it not be more appropriate for such matters to be dealt with in the code of practice rather than in primary legislation? It seems much more sensible to deal with this by way of advice to, for example, university institutions.
Lord Moylan (Con)
My Lords, I take great pleasure in speaking immediately after the noble Lord, Lord Mann, and other noble Lords who have spoken on this topic. I am delighted that my Amendment 35 has been grouped with this interesting debate but I will be taking the discussion in a slightly different direction, which explains my hesitation at leaping in at this point. None the less, I am on my feet and will speak to Amendment 35 in my name, which is in this group.
At least some of us who were in Committee on Monday began to wonder how much this Bill would achieve by way of change, both culturally and in practice. I say that by way of introduction to my remarks on the amendment because I am coming to the question of how the Equality Act is interpreted in connection with the duty, which already exists under the 1986 Act, on universities to protect freedom of speech and freedom of expression. I remind the Committee that, under the Equality Act, all public bodies have a broad duty to
“eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act … advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it … foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
The 1986 Act, as I say, has the obligation to protect and advance free speech but, in recent years, we have found that the Equality Act obligation is frequently being interpreted by universities as a reason to take steps to impose their views on equality, diversity and inclusion both on students and in public events. We have seen, for example, gender-critical feminists being turned away precisely because universities have interpreted their presence as contrary to their own public sector duty under the Equality Act.
Amendment 35 does not excuse universities from their public sector/public body duty under the Equality Act—they remain required to fulfil that broad duty. But it does insert a university-specific balancing requirement that requires universities also to have regard to free speech in interpreting this duty. This is a balancing amendment that ensures that potentially contradictory public law duties do not clash with one another. It is for that reason that I advance it but, to be honest, if we do not see something like this happening at various points in the Bill, it is hard to see how current practice and culture will change at all. With that in mind, I recommend Amendment 35; I hope that the Minister will be able to give wholehearted agreement.
Lord Smith of Finsbury (Non-Afl)
Might I ask a question of the noble Lord? He spoke about how he was anxious to have the duties under the Equality Act and the duties under freedom of speech promotion sitting alongside each other, but his amendment refers to having
“particular regard to the duty”
of freedom of speech. Does that mean that the duty of freedom of speech would overtake the duties under the Equality Act instead of sitting beside them?
Lord Moylan (Con)
My Lords, that is not the intention. The use of “particular” arises because universities, both as universities and as public bodies more generally, have a range of obligations under the law. All the wording is intended to do here is to say that that particular obligation needs to be taken into account because this Bill relates to freedom of speech in academic bodies. It is not intended to give priority; it is intended to draw attention to, and have particular regard to, that matter.
In natural language—this is of course legalistic language, to some extent—one would say “to have regard particularly to that as among the other obligations that universities have”, but this is how it is expressed in legal language. I assure the noble Lord that the intention is not to trump one over the other but to require a balancing of these existing obligations and put that requirement in the Bill. At the moment, although it might be said that they both exist and it is for universities to balance them, universities are not balancing them in a way that satisfies the intentions of this Bill.
Baroness Fox of Buckley (Non-Afl)
I will speak to Amendment 35, to which I have put my name; it relates to amending the Equality Act, as has just been discussed. I will also speak in support of Amendment 69 in the name of the noble Lord, Lord Sandhurst, which would strengthen the academic freedom protections of the Prevent duty.
I start with Amendment 69 on Prevent. On Monday, a noble Lord—I think it was the Minister, the noble Earl, Lord Howe, but I cannot find it in Hansard so I cannot say; I wrote it down at the time—said that there is no place on campus
“for extremist views that masquerade as facts”.—[Official Report, 31/10/22; col. GC 21.]
I do not know who said that but somebody did, and it is quite a frequently said thing. I want to probe who the extremists are; indeed, I want to probe who the fact-checkers are in this instance.
During his first unsuccessful leadership bid, the present Prime Minister suggested an expanded definition of extremism to include anyone who hates Britain. It hit the headlines for a while, with people going around saying that there would be Prevent orders thrown at all sorts of people who might have been heavily critical of Britain or the UK. He backed off from it, but my point is that the whole concept of extremism has become so elastic and broadened that it has discredited whatever it was that Prevent was trying to do.
I have had a problem with the Prevent scheme since its inception. Such is the nature of today that, as this is recorded and in Hansard, I want to make it absolutely clear that this is not because I have any soft sympathies with Islamist terrorists of any nature; in fact, if anything, I think that the Government have been rather lackadaisical in not dealing with them more harshly. Putting that to one side, I was always worried about Prevent, particularly in an educational setting.
Baroness Bennett of Manor Castle (GP)
My Lords, I will speak to Amendment 69 from the noble Lord, Lord Sandhurst. The Committee will note the unusual situation, in which the noble Baroness, Lady Fox, and I have both signed the same amendment. That shows that there may be different ways of coming at this issue. My focus is very much on the independent evidence and the statistics about the impact that Prevent has had in universities.
I begin with the leading human rights group, Liberty, which says that the biggest threat to free speech in our higher education institutions comes from Prevent. To quote its director of advocacy:
“There is a substantial irony in the government spuriously accusing today’s students of threatening free speech when, in fact, the true threat to free speech on campus is the government’s own policies”.
The University and College Union briefing is useful to the entire Bill. It notes that
“Prevent has encouraged the policing of mainstream discussion of topics such as British foreign policy and Palestine”.
The Committee might ask how many events this affects. Figures from the Office for Students, from 2019, show that, in more than 300 higher education institutions in England, nearly 60,000 events and speakers were considered under the Prevent duty. Nearly 2,100 appeared only with conditions attached. We do not know how many proposed events and speakers did not even get to that stage because people were scared off by the idea of being tangled in Prevent—but that is 2,100 events.
If the Committee does not want to listen to those sources, perhaps it will look at the inquiry of the Joint Committee on Human Rights of the two Houses, which reported in 2018. I come back to comments I made on Monday about the direction, and indeed the existence, of this Bill. The Joint Committee said that this area relates to
“a small number of incidents which have been widely reported”.
I contrast this with the kinds of examples noble Lords have raised. Remember, it was the Joint Committee on Human Rights of both Houses that noted that Prevent was a significant “chilling” factor on free speech in universities. It said that there is “fear and confusion” surrounding the Prevent strategy.
I note also that research from SOAS academics found that Muslim students on campus were modifying their behaviour because of Prevent, for fear of being stigmatised, labelled as potentially extremist or subjected to discrimination on campus.
My position remains that this Bill is not necessary or productive. However, if we are to have it, it should surely contain Amendment 69, which addresses what a number of independent sources have identified as the most chilling source of restrictions on free speech on campus.
Lord Sandhurst (Con)
My Lords, I am grateful for the support that has already been given to Amendment 69 by the noble Baronesses. I can therefore deal with it quite quickly, just to explain what it does.
It would add a new provision to Section 31 of the Counter-Terrorism and Security Act. The effect would be that the duty imposed under Section 26(1) of that Act, which I will explain in a moment, will not apply to any decision made by a provider, in effect, which directly concerns the content or delivery of curriculum, the provision of library or other teaching resources, or research carried out by academic staff.
The simple way to look at it is this. Section 26(1) of the Counter-Terrorism and Security Act applies directly to a specified authority and imposes a duty to
“have … regard to the need to prevent people from being drawn into terrorism”—
in other words, the Prevent duty. Section 31(2) provides that, when a specified authority—in other words, an academic institution—is carrying out that duty, it must have regard to the Prevent duty. Such an institution
“must have particular regard to the duty to ensure freedom of speech, if it is subject to that duty”
and
“must have particular regard to the importance of academic freedom”.
Amendment 69 would clarify what is to be encompassed in that on a more express basis by making it absolutely clear that, where the specified authority is directly concerned with content or delivery of curriculum, the provision of library and teaching resources, or research, the Prevent duty will not apply. That is all it does. It is very simple and clear, and it protects academic freedom. I think that is all I need to say in the light of the speeches that have been made.
Baroness Smith of Newnham (LD)
My Lords, on this occasion I speak as myself—I do not think I have to go quite as far as the noble Baroness, Lady Falkner of Margravine, in saying that I speak as myself and not as a Cambridge academic. And I do not have to channel my noble friend Lord Wallace, because he did not give me any briefing notes for these amendments.
The amendments in the name of the noble Lord, Lord Mann, are potentially helpful but I assume that, as with any legislation, the Government are extremely unlikely to say, “That’s a really good amendment. We’ll just take it lock, stock and barrel and put it into the legislation”. That normally does not happen. Even if a Minister agrees in Committee that an amendment might have some validity and value, there is usually a reason why its wording or a particular idea in it would not be quite right. I therefore ask the Minister, in responding to the amendments, to respond instead to the sentiment of what the noble Lord, Lord Mann, is saying.
Lord Smith of Finsbury (Non-Afl)
My Lords, I remind the Committee of my declaration of interest as master of Pembroke College, Cambridge, although I am of course speaking in an entirely personal capacity.
I have considerable sympathy with the amendments tabled by the noble Lord, Lord Mann. I fear some of the practical consequences of the amendments as exactly framed, but the principle behind them seems to be rather an important one. The Bill is all about ensuring that universities do what they ought to be doing, which is encouraging and facilitating freedom of speech, expression and ideas, while also encouraging the contesting and debating of those ideas. That is what an academic process has to be all about.
There is a danger in some of the advocacy for this Bill in assuming that only one kind of freedom of speech, rather than all kinds, is to be encouraged and facilitated. Ensuring that what we do here enshrines the principles of contest and debate alongside the principle of freedom of speech is rather important. I am not sure that the precise amendments of the noble Lord, Lord Mann, get us there but it is important that we find a way of doing so.
Turning to Amendment 35, as I indicated in my intervention in which the noble Lord, Lord Moylan, kindly allowed me to ask a question, I am worried about the phrase “have particular regard to” the freedom of speech duty. Universities have to take account of an array of different bits of legislation, such as the Equality Act and the Prevent duty, and their responsibilities as employers under employment law. Now, they also have duties under freedom of speech legislation. They need to find ways of balancing those duties. Putting into the Bill language implying that the freedom of speech duty should trump everything else in all circumstances seems to present us with a problem. It should not.
Baroness Fox of Buckley (Non-Afl)
My Lords, I think the difficulty here—this goes back to our earlier discussions—is around what the purpose of a university is. The purpose of a university is not employment or fulfilling equality; it is the open pursuit of knowledge without any restraint to academic freedom. That is the purpose of a university. It should be a space distinct from somewhere else. Surely in some ways a greater privilege has to be given to academic freedom than to those other duties. What has happened is that this has become only one of the many different things that happen on campus so universities have forgotten that academic freedom is the core purpose of a university.
Lord Smith of Finsbury (Non-Afl)
I think we are entering dangerous territory if we seek to argue that one bit of law is more important than another. Upholding the duties that are placed on a university generally is something that universities have to do. Giving universities the task of balancing the requirements placed on them under legislation is the way we ought to go.
Lord Moylan (Con)
I think the noble Lord slightly missed the point made by the noble Baroness, Lady Fox of Buckley. She was not suggesting that there are various legal duties and one is more important than another; she was making an ontological point about what a university is. Freedom of expression and freedom of speech are built into the DNA of a university. This is not simply a matter of balancing legal obligations. The point she was making is that privileging it is absolutely appropriate because that is what universities are for.
I want to make a further point, if I may. I hear this quite a lot from those who object to taking this forward. Do noble Lords recognise that there is a problem? The noble Lord will have his own experience of academic life, although I appreciate that he is speaking in a personal capacity. The free speech protection duty was last expressed in statute in 1986. The difficulty is that, whereas in 1986 the universities saw it innately as their duty to protect freedom of speech, the years have moved on, and now the university authorities themselves are oppressing free speech—not in every case, of course, but it is tending in that direction. So the circumstances have changed, and the need for some sort of balancing is apparent to many of us but seems not to be to those who speak, to some extent, even if in a personal capacity, on behalf of the academic community. That surprises us.
Lord Smith of Finsbury (Non-Afl)
I would not fundamentally disagree with either the noble Lord or the noble Baroness about the free exploration of ideas and knowledge being central to the purpose of a university; that is almost self-evident. However, we need to ensure when we are putting legislation through the House that we are not imposing impossibilities on the people who lead universities, making it very clear to universities, colleges and student unions that they have a responsibility to promote freedom of speech and a responsibility to promote respect for all students within their community, for example. That is a sensible approach to ensuring that the Bill achieves what we all might want it to achieve.
On Amendment 69, I have a lot of sympathy with clarifying the Prevent duty in the way that the amendment suggests. That might be a rather useful way of ensuring that Prevent becomes rather more sensible than perhaps it has tended to be over the last few years.
Baroness Falkner of Margravine (CB)
My Lords, I declare an interest as chair of the Equality and Human Rights Commission, as Amendment 35 specifically relates to the Equality Act 2010. I hope that my remarks will clarify the intentions of the noble Lord, Lord Moylan, as regards the Equality Act, because I have a great deal of sympathy with what he is attempting to do. I also have an enormous amount of sympathy with some of the comments of the noble Lord, Lord Smith of Finsbury, because, in a much more tangible way, they set out what some of the problems are.
I will speak very briefly. My first point is that the public sector equality duty is not specifically concerned with freedom of expression. Our assessment in the commission is that, although there may be some evidence —the point made by the noble Lord, Lord Moylan, is a strong one—that more recently this has become a tool used by universities to avoid their duties in terms of freedom of expression, nobody has mentioned that other part of the Equality Act and the public sector equality duty, which is the need to foster good relations between groups who share protected characteristics. Therefore, that duty—the need to foster good relations—allows those who wish to hide behind the public sector equality duty to use it that way. Universities sometimes tend to use the fostering good relations duty a bit too widely, but because it is not circumscribed and does not define what it means, they can so do.
We have guidance on freedom of expression for higher education providers and student unions across Britain. When a university considers whether to permit an event to take place, it must take account of all its statutory duties, as the noble Lord, Lord Smith, referred to. These include Section 43 of the Equality Act, Article 10 of the Human Rights Act, student unions’ obligations under charity law, and the Prevent duty, as well as the public sector equality duty. Balancing is therefore a necessary task that they must do. My sympathy with those institutions lies in the fact that, in every case, every decision will be different depending on the facts of the decision. In that sense, balancing will be a necessary exercise, irrespective of whether his amendment is accepted or not. Having “particular regard” nevertheless places it in a hierarchy.
Lord Collins of Highbury (Lab)
This has been a really informative debate. Fundamentally, the noble Baroness, Lady Falkner, has set it in the proper context. I am not sure which hat she was wearing but whichever it was, this has been put in context; it is about balancing duties.
I must admit that, the more we discuss the clauses in this Bill in detail, the more I think about unintended consequences. If we have existing duties and responsibilities, why have they not worked? Why is it that Governments immediately resort to legislation rather than thinking about what is actually going on and asking what powers that they have could be better utilised? On the first day in Committee, a number of noble Lords made precisely that point. They highlighted where they think that things have gone wrong, but did not see this legislation as being particularly the right mechanism for putting it right. This debate has been extremely useful.
I must admit that I found the contribution from the noble Lord, Lord Mann, enlightening. My tendency is to look at my own personal experience at university—many, many years ago. There was quite a lot of hostility and demonstrations, and certainly some of the extremists that the noble Baroness, Lady Fox, talked about—maybe even the noble Baroness herself, as I suspect that we were both at the same university—frequently tried to stop me speaking on behalf of the Labour Party. By the way, I like the idea that I have the luxury of speaking in a personal capacity; maybe we should tell Conservative Central Office that that is the case—though I am tempted not to do that.
At the end of the day, what we have here is agreement on fundamental principles but disagreement about how you best achieve them. Invariably, there are competing interests at stake when speakers are invited to our campuses but, as the noble Lord, Lord Mann, said, freedom of speech is not a trump card. I make that point to the noble Lord, Lord Moylan. He may be able to qualify his words but, fundamentally, as the noble Baroness, Lady Falkner, said, those words do put it into a hierarchy, which I think is particularly dangerous.
Whether we like it or not, universities have a broad range of responsibilities, and not only to academic staff and students; they are also big employers and so have a duty to other staff as well—particularly when it comes to statutory legislation such as that on health and safety, which is something they must take into account when exercising these responsibilities.
As the noble Lord, Lord Mann, said, students have a right not to be harassed or subjected to hate speech. Most importantly, as he said, they have a right to protest and to say that the opinions being expressed by somebody who has been invited to their university are abhorrent. When I was at university, extremist religious faith groups were saying that my sexuality represented an evil thing that needed to be banned and stopped. Fortunately, we have moved on and do not allow that in quite the same way. If a religious fundamentalist came here, I would expect to have the right to say that I found their opinion abhorrent. The noble Lord, Lord Mann, was absolutely right, and the case that he used to illustrate this is an important one.
When I looked at the Bill’s Committee stage in the Commons, I saw that points were made, with reference to the evidence sessions, about how the Equality Act could be used:
“Professor Stephen Whittle from Manchester Metropolitan University acknowledged as much in the Bill Committee, recognising that the Equality Act would afford protection only if the speech were directly addressed to the complainant. That is important because front groups such as Hizb ut-Tahrir, which is not a proscribed organisation but which often espouses antisemitic views, could come on to campus under the guise of freedom of speech.”—[Official Report, Commons, 13/6/22; col. 80.]
There is real concern here about how we must have that balancing act and ensure that people are protected. The example from the noble Lord, Lord Mann, about a family member of someone who suffered the consequences of terrorism, is a really important one.
At the end of the day, we have to try to take into account the sentiments contained in Amendments 29, 32 and 44 and ensure, as the noble Lord, Lord Smith, said, that we recognise those balancing responsibilities. As the noble Baroness, Lady Falkner, said, it is important that this proposed law does not inhibit the balancing of those responsibilities. I certainly have a lot of sympathy for the amendments in the name of the noble Lord, Lord Mann.
Earl Howe (Con)
My Lords, as we have heard, this group brings together a series of amendments that seek to clarify in the Bill how its duties will interact with other duties and responsibilities.
Amendments 29 and 44 in the name of the noble Lord, Lord Mann, seek to ensure that providers and student unions balance their duty to take steps to secure free speech with their duty of care to students, staff and members. Amendment 32 would add this consideration to the duty to promote in Section A3.
I am grateful to the noble Lord for raising this important point and listened with care to the examples he gave. He is quite right that providers have a duty of care to their students under common law, as well as obligations to their staff under employment law. Student unions also have responsibilities to their staff under employment law. It is of the utmost importance that they can fulfil these obligations, providing an environment in which students, academic staff and members can thrive and taking reasonable steps to promote their health, safety and welfare.
As I mentioned, the noble Lord cited a number of examples to illustrate his arguments around the duty of care, one of which was a speaking invitation issued to a convicted terrorist. Inviting a convicted terrorist would likely require consideration under the Prevent duty in addition to the wider points he made on duty of care. I will cover the Prevent duty in more detail when I cover Amendment 69, if he will allow.
Lord Mann (Non-Afl)
I thank the Minister but, to clarify, the case I cited was not stopped by Prevent. Prevent was in place. This was an actual example, not a theoretical one, but I do not want to name the college or identify the student in any way. It was perfectly lawful under Prevent; Prevent did not stop it and was not party to it. As an actual example, I think it is a good illustration.
Earl Howe (Con)
I was making the point that the case he used to illustrate the issue would have been likely to engage Prevent even if the Prevent considerations had taken second place to the decision to promote freedom of speech. I do not disagree with the noble Lord in the way he suggests.
This leads to the general point that, to assist it to discharge its duty of care, a provider needs to ensure that it has in place effective and robust systems, policies and procedures for supporting and managing students, and that training and awareness-raising is provided for staff. Such a duty of care does not conflict with the duties in this Bill. The requirement to take reasonably practicable steps allows providers to balance that duty with other duties and responsibilities to students, staff and members.
Amendment 35 from my noble friend Lord Moylan would add a new provision to the public sector equality duty in the Equality Act 2010, whereby public authorities would need to have particular regard to their free speech duties. The amendment raises an important point. Providers are subject to different duties, and it is vital that they balance them appropriately. However, the Government are clear that the duties in the Bill will not override existing duties under the Equality Act, nor will those existing duties override the duties in the Bill. The noble Baroness, Lady Fox, cited the briefing from SOAS, which I have read. The briefing is absolutely incorrect to suggest otherwise. We need to remember that the public sector equality duty is a “due regard” duty.
There have been occasions when the Equality Act has been misinterpreted by providers—for example, as to whether the conduct is harassment—but the Office for Students will publish guidance to help bodies under this Act understand their duties and apply them. Providers will be required to take reasonably practicable steps to secure freedom of speech. In deciding what is reasonably practicable, they must have particular regard to the importance of freedom of speech. This does not mean that freedom of speech must always outweigh other considerations but indicates that it is a very important factor and will need to be weighed against other factors, including the public sector equality duty.
Lord Moylan
(a) eliminate unlawful interference with freedom of speech within the law and academic freedom,(b) promote and prioritise the particular importance of freedom of speech within the law,(c) promote and prioritise the academic freedom of academic staff of registered higher education providers and their constituent institutions, and(d) foster a culture of free thought and open-mindedness,sin all decision-making concerning the provision of higher education and in conducting and managing research activities.”Member’s explanatory statement
This amendment seeks to clarify the steps providers will need to take in order to promote freedom of speech and academic freedom.
Lord Moylan (Con)
My Lords, I rise to continue my minute and curious search for means by which the Bill might achieve some noticeable change. I notice I am grouped with an amendment from my noble friend Lord Willetts which appears to be there to ensure no such change is actually achieved in practice or cultural outcomes, so I think we are well matched. I will continue on this hunt for the prospect of change. In this case, I am not suggesting we amend any other legislation or duty, so noble Lords resistant to change will have to find different arguments to respond to me.
This amendment would amend not existing legislation but the text of the Bill. In new Section A3, the
“Duty to promote the importance of freedom of speech and academic freedom”
is defined in a manner which is pleasing to the Government. It simply says that it is there to promote
“freedom of speech within the law, and … academic freedom for academic staff of registered higher education providers … in the provision of higher education”.
This is insufficiently clear on which duty is being imposed on universities that does not exist already.
Amendment 31, which I have put forward, specifies what we expect universities to do as a result of the passage of the Bill into law. I will not read out everything it says, but it is there to
“eliminate unlawful interference with freedom of speech within the law and academic freedom … promote and prioritise the particular importance of freedom of speech … promote and prioritise the academic freedom of academic staff … and … foster a culture of free thought and”
open markets—sorry, “open-mindedness”. There is nothing wrong with promoting open markets either, but as it happens that is not the wording of this amendment. I am attempting to make clear what it is that we expect universities to do as a result of this duty to promote academic freedom, which the Government agree should exist but have defined in a manner which leaves the whole thing completely open.
There is an acid test to apply to this, which is the case of Dr Kathleen Stock. I do not know her, and I know nothing of her case that I have not read in public sources, so I am not making a special plea on her behalf. I am simply taking the story as emblematic. In her case, the university—I think it is fair to say—did not do some of the things it should have done to protect her and her rights. That could easily still be the case, especially with the amount of time that universities will have to spend on the astonishingly complex calibration of duties and obligations, which are apparently going to remain wholly unamended by this Bill. It has let her down.
The acid test is whether this clause would have protected a reputable academic from losing her post after expressing views which were objected to on essentially ideological grounds. My view is that, as drafted, it would not. The amendment I am moving would and I hope the Government will be able to explain why it should not be adopted when what they are doing is clearly not enough. I beg to move.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, I should notify the Committee that, if this amendment is agreed to, I will be unable to call Amendments 32 or 33 owing to pre-emption.
Lord Willetts (Con)
My Lords, perhaps this is the moment at which I might intervene on Amendments 33 and Amendments 54 to 56, which are in my name and that of the noble Lord, Lord Stevens. I declare my interests as a visiting professor at King’s College London, an honorary fellow of Nuffield College, Oxford, chancellor of the University of Leicester and a member of the board of UKRI.
I am going to rise to the challenge from my noble friend Lord Moylan. My understanding of the purpose of this Bill is to enhance the protection for freedom of speech in universities. That is an admirable objective and I support it. I have some doubts about the practical effects of this Bill, which this Committee is scrutinising, but the objective is the right one.
The evidence is clear—a point made by the noble Baroness, Lady Fox, in the debate on Monday, which I sadly was not able to attend—that, recently, universities have become overpreoccupied by probably a mistaken interpretation of their equality duties and have put insufficient focus on freedom of speech. I personally think that debates such as the one we are having and the shift in attention to this is already beginning to improve things. It is right, therefore, to look at ways in which we might reinforce the provisions of the 1986 Act. This Bill undoubtedly does that, both by a tort provision and a regulatory provision. I personally think that trying to use both of those instruments is overdoing it, but the powers of the regulator, the OfS, on their own are considerable; they will change the balance.
Amendment 33 would make explicit that this protection for freedom of speech sits alongside other duties, such as those in Prevent and in equality legislation—and also, I may add, labour market protections. I was quite interested in the way that the Minister, in his interventions on Monday and earlier today, has focused so much on employment law and labour market protections. One reason why cancel culture will never be able to do quite as much damage to higher education in the UK as it has done in the US is, paradoxically, because of the different framework of labour market and employment protection that we have in this country. It is quite a challenge to those of us historically in favour of deregulating labour markets. This is a context in which employment protection actually works to protect freedom of speech.
In the debate on the previous group of amendments, the Minister put the point very well that there are other duties in other legislation and what this legislation does is to put an obligation on freedom of speech alongside those. In fact, the main purpose of Amendment 33, I can now see, is to put into primary legislation exactly what the Minister has already assured us of: that this obligation on freedom of speech goes alongside other obligations such as the equality duty or Prevent duty.
One can sense from our debate that there are temptations to go in different directions. One temptation is to say that these provisions for freedom of speech must override other legislation, or perhaps—though we have had less of this—be subservient to other legislation. I do not think that it is the intention of the Government that they should either override or be subservient; they are alongside. I suspect that, as the Committee continues, we will find that there are some people who see an opportunity to make this override equality legislation, some people who want it to override Prevent legislation, and a very small group who would like it to override both. I personally think that the wording in this amendment,
“having due regard for all other relevant legal duties”,
is the right way to make it clear that there is an intention for this to be alongside those other duties.
As to the effect that the other duties have, we heard an important intervention earlier that one problem is that there has been a misinterpretation of the equality duty. The problem is less the actual equality legislation and rather a misunderstanding of it. For me, the most illuminating case is the Akua Reindorf report on what happened at the University of Essex, which was shocking. It was made absolutely clear that what happened was based on misunderstandings of provisions in equality legislation, particularly, for example, that the protections are for gender reassignment, not gender identity. Similarly, the Prevent duty is another important framework of legislation, and we need to ensure that it is balanced with freedom of speech.
Baroness Chakrabarti (Lab)
My Lords, I will briefly probe the amendment of the noble Lord, Lord Moylan, and probe the Minister a bit by way of that amendment. I support the amendments in the names of the noble Lords, Lord Willetts and Lord Stevens of Birmingham.
On the latter, I lament this intrusion into university autonomy, which has been going on for some time. I listened carefully to the point raised by the noble Baroness, Lady Fox: what is a university? Clearly, universities are to be places of free speech but also of free inquiry and independence from the state. They predate all the legislation that we have cited, which is really quite special. I am concerned about regulatory creep—not on employment and non-discrimination but on the content of the actual academic enterprise, if I can put it like that.
I broadly support the noble Lords in their common-sense amendments and I do not think anybody should really disagree. I do not want the Office for Students and all the rest of this architecture to be needed, but if it is going to be there then surely the duty to provide guidance should be a “must”, not a “may”, once we have entered this arena.
The amendment of the noble Lord, Lord Moylan—I am using it as a means to probe the Minister—wants the universities to
“have particular regard to the need to … (a) eliminate unlawful interference with freedom of speech within the law and academic freedom”.
Surely he should want them to seek to eliminate lawful interference with free speech too. Some of the problems that he must be concerned about are where people are not putting bricks through windows or breaching the criminal law to intimidate but are just making it not very pleasant to have debate and free speech. If he is to bring his amendment back, I say in a spirit of bipartisanship that that is a drafting problem or has not been completely thought through.
My real probe relates to something that the noble Lord, Lord Stevens of Birmingham, said last time that I found particularly revelatory. Of course a university must be a place of free speech and debate, but it must also be a place of academic excellence, or at least of academic quality. Surely that must sit alongside free speech. A university is not just a debating society or the public square; it is a place of academic improvement, inquiry and even excellence. Despite my politics, I do not shrink from the word “excellence”.
My question to the noble Lord, Lord Moylan, is again on the territory that we opened up with the Minister last time: where in this proposed statute or any other, if we are going to be prescribing duties around free speech, are the duties to protect academic standards? It was the noble Lord, Lord Stevens, who opened up this issue in my mind and I have been worried about it for the last couple of days. If free speech trumps everything, or at least academic standards, and those standards and the duty to maintain them are not prescribed in law, what happens with bad science and fake facts? What happens when a person declares that they must be protected from management, and possibly even from losing their post, because they are just writing and teaching rubbish? Our students, who are now consumers, deserve better.
Earl Howe (Con)
I am not sure the noble Baroness was in the Committee when I covered that very point quite near the beginning of our debate today. I tried to cover it on Monday but I expanded on it today as well.
Baroness Fox of Buckley (Non-Afl)
My Lords, I am very much in favour of Amendment 31. To put a different emphasis on it from what there has been so far, the amendment by the noble Lord, Lord Moylan, is helpful in making a positive attempt at promoting free speech. The amendment says
“foster a culture of free thought and open-mindedness, in all decision-making concerning the provision of higher education and in conducting and managing research activities”.
It is that bit about promotion that is helpful in terms of shifting the emphasis of the discussion a little bit about how we should view the Bill.
I found that I was reading this small HEPI—if that is how you say it—pamphlet in preparation for the student union group of debates later on. I found it a really interesting little book. The foreword is by Professor James Tooley, the vice-chancellor of the University of Buckingham, which has also co-published the book. I should declare my interest that I am a visiting professor at the University of Buckingham. Professor Tooley says:
“For many academics, the focus”
is
“only on the negative, on the ‘sticks’ of the law”.
He advocates that we focus on
“the positive, the ‘carrots’ of the intellectual and social attraction of academic freedom”.
Many people have said that the problem with the Bill is that does not tackle the cultural issues—that it avoids the question of what has happened to the positive association of universities with academic freedom. One of the contributions earlier asked why the 1986 duties have not worked and what the point is of bringing them under the Bill. Quite a lot has changed since those duties were brought in in the sphere of academic freedom, which is why I believe we need to pass a version of the Bill, no doubt amended, but not to use it as a silver bullet that avoids tackling the cultural issues. Anything that the Bill does to foster the promotion of free speech is very important. The main thing that I would urge is that the status quo position of “leave it as it is” is not acceptable. That is the kind of complacency that I hear. Universities will not survive and the academic standards that have just been referred to will deteriorate.
There is a tendency to blame students when we look at what has changed recently; they are either disparagingly written off as “Generation Snowflake” or, more positively, posed as uniquely sensitive to the issues of oppressed identity groups—unlike previous generations, who have never understood suffering—and having a unique insight into them. A combination of both is true. I do not want to blame students, but it is true that, whenever I talk at universities on free speech, many of them talk about it as if it were a value from “ye olden days”. They sometimes say: “We respect your right to think that free speech is important, but we have other priorities.”
I often find that commitment to free speech, on and off campus, is under strain not among the young but among the grown-ups, as it were. At best, there can be a shallow, instrumental lip service paid to the value of free speech, with so many “ifs”, “buts” and caveats that it is barely there. There is hardly a compelling case for the positive virtues of free speech, but rather a grudging acceptance that it is important, always accompanied by an emphasis on how it can play a corrosive and dangerous role in society and lead to a toxic political culture, hate crimes and, as we have heard in this debate, all these charlatan quack scientists dragging down educational standards.
Even the emphasis that the Bill and everyone else want to place on free speech within the law as a qualifier feels a bit tepid, especially when Governments of all stripes have regularly infringed free speech through legislation. As we speak, we have a Government proposing a pro-free speech Bill at the same time as the Online Safety Bill and the Public Order Bill, which are hardly wildly pro-free speech pieces of legislation. On campus, we have seen lots of academics, rather than students, introducing things that have undermined the culture of academic freedom. Whether it is mandated courses in microaggressions or unconscious bias, people feel as though they are walking on eggshells.
It is very important that we use this legislation—this is why I like Amendment 31—to make a positive case for the inviolable moral good of free speech. There was a lot of coverage of the seminar in Cambridge where, as the newspapers described it, students were trained in free speech. One of my colleagues ran it, Alastair Donald from Living Freedom; Andrew Doyle, the author of The New Puritans, spoke on Milton and Dr Piers Benn on Locke. What was really fascinating was that the reports of the students who attended last night said things such as, “I thought that coming to Cambridge would be like this, but it hasn’t been until tonight”. They also said that they often feel constrained in what they can say at university by their own tutors tut-tutting if they say the wrong thing.
When I brought out my book ‘I Find That Offensive!’ in 2016, I was warned that it was exaggerated—of course, it ended up completely underestimating the problem—and that young people would hate it and shun me because it addressed “Generation Snowflake” and the culture of “safetyism”. The truth is that, when it was published, the people who hated it were the educational establishment; it got terrible reviews in all the educational press. The people who really liked it were students. I spent two years doing a tour of all universities speaking about it. The students said, “Phew, it’s a relief to have somebody talking about this. I had never heard arguments like this before. I never really understood the history or philosophy of free speech.” It was not that they all loved me or agreed with me; they were just glad that someone was prepared to have the open discussion and debate.
We have to use this piece of legislation to promote free speech and academic freedom as much as we can. I support Amendment 31.
Lord Hope of Craighead (CB)
My Lords, I hesitate to intervene in this debate as I am not an academic. I look on the wording of the provisions in the Bill as a simple lawyer. For my part, I like the very simple wording of the existing provision in new Section A3. It is capable of accommodating changing circumstances and the various situations that academic institutions have to deal with.
The problem, with great respect to the noble Lord, Lord Moylan, is that he complicates that simple expression in new Section A3 with a serious of steps that are to be taken. I am not sure that anything he has said is inconsistent with what we find in new Section A3, but I would much rather keep it in the simple form that is already in the Bill without adding to the complication. To put it another way, the noble Lord, with great respect and with very good intention, is perhaps trying to do too much by expanding and trying to explain the duty already in new Section A3.
I do not object to the addition suggested by the noble Lord, Lord Willetts, but I do not think it is necessary as, if it is a relevant legal duty, it is already there to be performed; it does not need to be said. As a lawyer, I prefer simplicity—not all lawyers do—and I would like to keep it simple in the way it is already expressed in the Bill.
Baroness Smith of Newnham (LD)
My Lords, from these Benches we have relatively little to add. I strongly support what the noble Baroness, Lady Chakrabarti, said on various issues, not least about academic excellence because it is not just about academic freedom. Part of the purpose of a university is about educating and engaging in debate, but we are also trying to ensure that the minds of students are being stimulated. It is not just about academic freedom but that is part of it. As the noble and learned Lord, Lord Hope of Craighead, has said, Amendment 31 seems somewhat unnecessary. While on these Benches we support the amendments in the names of the noble Lords, Lord Willetts and Lord Stevens, if the Minister can persuade us that they are all implicit in the Bill and are not necessary, then perhaps they could not be moved.
Lord Willetts (Con)
Briefly, the debate we have just had shows why the amendments are necessary. They do not change the underlying framework of law but make explicit something which otherwise would just be implicit. There are benefits for universities and people participating in them by it being explicit.
Baroness Chakrabarti (Lab)
My Lords, I forgot to declare my interests as a visiting professor of practice at the LSE and in receipt of research services from a PhD student from King’s College London. To support the noble Lord, Lord Willetts, if this is becoming such a difficult area, it will be tempting for regulators that “may” issue guidance not to do so in a particular contentious area. We go down this road or we do not, to some extent. If there are rows between competing minority interests and around particular foreign policy issues, then if I were a regulator, it would be all too tempting to sit back. That has sometimes been the case in the past, whether with the police or regulators. That is in support of the rather tighter duty that the noble Lord, Lord Willetts, proposes to put on the regulator.
Baroness Thornton (Lab)
My Lords, I am not going to say very much because this debate has covered most of the ground that we need to cover on how this issue should be decided. However, I always listen to the noble and learned Lord, Lord Hope, very carefully. When he says that simplicity is best, that is probably right. We definitely find Amendments 33 and 54 to 56 the more attractive amendments. As my noble friend Lady Chakrabarti said, they are the common-sense amendments. I am more attracted to them than to Amendment 31 in the name of the noble Lord, Lord Moylan.
This debate has shown, and I agree with those who have said so, that while the words in the noble Lord’s amendment are of course very laudable, actually it is the words that go in the Bill and create the law that are important. That is our job here in this House. It is certainly not our job to put words into legislation that might create more confusion and proclaim values at this stage. The Minister will probably tell us how the Government feel about that. My noble friend Lord Smith outlined in the earlier debate what a hard job the leaders of our universities have in balancing their duties and rights. That was amplified by the noble Lord, Lord Willetts, when he spoke to his amendment.
In reflecting on the remarks of the noble Lord, Lord Moylan, I do not think that this amendment would have stopped what happened to Kathleen Stock. That was a failure of the leadership of her university to fulfil their duty of care to her and their need to promote free speech in their institution. This amendment would not have stopped that, because it is to do with how that university conducts itself.
Lord Grabiner (CB)
My Lords, I will be very brief. On the point made a moment ago by the noble Baroness, one of the oddities about the Kathleen Stock case—the noble Baroness, Lady Falkner, knows a lot more about this than I do—is that she undoubtedly would have had a claim for breach of contract. It appears that some agreement was arrived at and the matter was settled, but she would have had a very clear and good claim against the employer for breach of contract, without the need for anything in this Bill, which does not advance matters. However, we will come to that at a later moment.
I respectfully support the amendments from the noble Lord, Lord Willetts, but I am not going to get involved in the Moylan debate. I firmly support Amendments 54 to 56 because what is critical, as has become apparent in the course of these debates, is the importance under the Bill of the guidance and code of practice. It is vital that the code of practice that eventually results is an absolutely bullet-proof and really impressive document. The proposals from the noble Lord, Lord Willetts, would achieve that and strengthen the current drafting.
Earl Howe (Con)
My Lords, this group of amendments relates to duties and powers to promote freedom of speech under the Bill. Amendment 31, tabled by my noble friend Lord Moylan, seeks to clarify the steps that a higher education provider or college would need to take in order to promote the importance of freedom of speech and academic freedom. This amendment would replace the duty to promote the importance of freedom of speech and academic freedom with a duty to have particular regard to certain matters, including the need to eliminate unlawful interference with freedom of speech and academic freedom and to promote and prioritise the particular importance of freedom of speech.
By replacing the duty as drafted, I suggest to my noble friend that this amendment would in fact weaken the duties under the Bill by replacing a duty to do something—the words, “must promote”—with a duty to “have particular regard”. Providers will already be required, under new Section A1, to take reasonably practicable steps to secure freedom of speech. In doing so, they will need to have particular regard to the importance of freedom of speech. As part of this, we would expect providers to consider many of the matters suggested by this amendment and do not consider it necessary to set these out in detail. Indeed, prescribing the matters to which providers must have regard in this way could have unintended consequences, and result in providers taking a less comprehensive and balanced approach to their duties overall.
My noble friend asked me why specifically I could object to his amendment. There is a good reason, as I have indicated, which is that the amendment would have the effect of removing the duty to promote the importance of freedom of speech and academic freedom. That is a new and important duty, created by the Bill, that will drive forward a culture where freedom of speech is fostered and celebrated and students, staff and visiting speakers feel confident to express their views freely.
Amendment 33 in the name of my noble friend Lord Willetts and the noble Lord, Lord Stevens, seeks to amend the duty to promote the importance of freedom of speech and academic freedom by adding a duty to have due regard to all the other relevant legal duties. We have already discussed the issue of the interaction of the Bill with other duties. The main duty in the Bill is to take reasonably practicable steps to secure freedom of speech within the law. That means that providers, colleges and student unions can take account of all their legal duties on a case-by-case basis. So the duty does not override existing duties under the Equality Act 2010 regarding harassment and unlawful discrimination nor, for providers, the public sector equality duty or the Prevent duty. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that.
I agree that the University of Essex report showed that there were misunderstandings of how the Equality Act should be properly applied, but we hope and trust that the measures in the Bill will, as I said earlier in response to a point made by the noble Lord, Lord Collins, serve to minimise those misunderstandings.
As I have previously said, the duty is derived from the current legislation in the Education (No. 2) Act 1986, so it is not new. Providers have been balancing their legal duties for many years: in relation to unlawful discrimination and harassment under the Public Order Act 1986 for 35 years, in relation to the public sector equality duty since 2011, and in relation to the Prevent duty since 2015. However, the new duty to promote the importance of freedom of speech and academic freedom might mean that a provider speaks out publicly to defend the freedom of speech of a staff member in the face of calls for them to be removed for something they had said, or it might involve giving talks to staff and students on the importance of freedom of speech in democracies.
We come back to an objective that I have mentioned before, which is the need in some institutions for a change of culture. Noble Lords will appreciate that the duty to promote is a high-level duty designed to give rise over time to a change in culture on university campuses. It is not a duty to promote freedom of speech. Rather, it is a duty to promote the importance of freedom of speech. As such, I do not believe that it needs the additional “due regard” duty as proposed.
Amendments 54, 55 and 56 in the name of my noble friend Lord Willetts seek to require the Office for Students to consult on and publish guidance relating to the promotion of freedom of speech and academic freedom, and to require it to give advice on that in a timely manner. Clause 5 inserts new Section 69A into the Higher Education and Research Act 2017. This provides that the OfS may identify good practice and give advice to providers and colleges on the promotion of freedom of speech and academic freedom. This wording is entirely based on Section 35 of the 2017 Act, which provides that:
“The OfS may … identify good practice relating to the promotion of equality of opportunity, and … give advice about such practice to registered higher education providers.”
Accordingly, the provision does not concern the new duty on providers and colleges to promote the importance of freedom and speech and academic freedom in new Section A3 that I have just described. Rather, it concerns the duties of the OfS and the advice that it can give to providers and colleges generally about how they can promote freedom of speech on campus.
I hope my noble friend Lord Willetts will be reassured to know that Section 75 of the 2017 Act, as amended by this Bill, will require the regulatory framework of the OfS to include guidance for providers on the general ongoing registration conditions, which will now include specific registration conditions on free speech in accordance with Clause 6, as well as guidance for student unions on their freedom of speech duties. Therefore, it will be here that the OfS will set out guidance on the new duty under Section A3 to promote the importance of freedom of speech and academic freedom, which must be complied with under the registration conditions.
Lord Moylan (Con)
My Lords, I am grateful to all noble Lords who have spoken in this debate. I hope they will forgive me if, in the interests of time, I respond only to the comments made by my noble friend Lord Willetts.
First, I must congratulate him on his masterpiece of oratory whereby he implicated our noble friend the Minister in his view such that it would appear almost churlish, by the time the Minister came to respond, that he should disagree with my noble friend on almost any matter at all. I have much to learn from him in that regard.
However, I wish to turn to one point made by my noble friend Lord Willetts. It has struck me with increasing force because it builds on something said earlier by the noble Baroness, Lady Falkner of Margravine, and other noble Lords: that nothing will be changed by this Bill and all change will be achieved by the code of conduct. That seems to be the message; in fact, it was almost explicitly the message given by my noble friend. I have been in your Lordships’ House only a couple of years but the tendency I have seen here is to say that, where guidance of a binding character is to be issued, we should scrutinise it and set the terms for it. When it came to what the College of Policing is doing about non-crime hate incidents, it was a united view across the House that the guidance issued by the college should become statutory guidance precisely so that we could scrutinise it.
Here, however, we seem to be taking a completely reverse approach. Nothing must appear on the face of the Bill, and everything must be left to the guidance to be issued by the Office for Students. As far as I can tell—I am open to correction by noble Lords—this guidance is not to be the subject of parliamentary scrutiny nor issued through the “made affirmative” process as a statutory instrument. It is not to come to our attention in any way at all. We are simply abdicating all the guts of the Bill to the Office for Students in how it will apply. I simply say to my noble friend that I find this really rather strange. I am tempted to suggest to him that, if my amendments were reformulated not as obligations on universities but as obligations on the Office for Students to include those things in the guidance, his principled objection would fall away—or is he absolutely determined that the Office for Students should have a completely free hand, with no parliamentary scrutiny, in how this Bill will be implemented if it becomes an Act?
I raise that as a challenge to what I might call the forces of institutional conservatism, which range across the Room—those who wish to see nothing change. Are your Lordships really suggesting that change can be achieved only by abdicating our responsibilities to a relatively new public regulator?
Baroness Chakrabarti (Lab)
I congratulate the noble Lord, if I may—he congratulated his noble friend in what became an absolute tour de force of a response itself. I have huge sympathy for his general proposition that in this place we allow too much not to be in the statute book and delegate far too much to secondary legislation and even to guidance. It is often something that we do when we are giving overly broad powers and we have made a bit of a mess of the legislation—“Don’t worry, it’ll all be sorted out in guidance.” However, I have to say, in fairness—perhaps I have become part of the new forces of conservatism; that I am now considered a conservative will show you how much politics has moved to the right in this country—that there is a qualitative difference between coercive police powers and pedagogy and creating a culture of learning and inquiry in an academic establishment, which would be very hard to legislate for at the level of detail that I personally would like something such as police powers to be provided for. I have huge sympathy with the noble Lord’s general proposition that bad law leaves a lot of stuff to be dealt with later invisibly by guidance but I am not sure that the analogy with police powers and creating cultures in universities is quite comparable.
Lord Moylan (Con)
I have to say that I am sinking in sympathy on the general principle in this Committee, which is coming at me from every side. Nobody lacks sympathy with what I am saying—in general. It is only in the particular that they object to what might be put forward to practical effect—I am always open to the charge that I may have erred in drafting and may have got the wrong approach, and all that—but without substituting any particular proposal for the ones that they particularly find objectionable in my case. I agree that it is not a suitable parallel. Coercive police powers are not a suitable parallel with pedagogy—I picked it off the shelf—but they are perhaps a suitable parallel with somebody being driven out of their job because of particular views, because that too is a coercive act. If they are not defended from being driven out of their job, and we are simply saying that it will be dealt with by guidance and not in the Bill, what are we doing? They are skewered, because they now admit the need for change but they want it done by somebody else.
I now come to my noble friend the Minister, because I really must wrap up, and we have to move on.
Baroness Smith of Newnham (LD)
My Lords, surely there is a difference between something that is appropriate as guidance, where right-minded people would think that guidance was appropriate, versus Henry VIII clauses, where Ministers are seeking to grant themselves sweeping powers over which there is no scrutiny. What we are saying here is not, “Let’s grant Henry VIII powers to a Secretary of State”, but rather that there are appropriate places for things, and on this occasion, guidance is the appropriate place.
Lord Moylan (Con)
It is absolutely clear that of course there is a difference between guidance and Henry VIII powers but we are not in that field here. We are talking about what our contribution is as legislators and the fact that, on what we acknowledge to be tricky and difficult issues on which the public and leaders of universities would like to know our views, we are saying, “We aren’t going to agree on any of that. We’re going to give it to a body where we have no say and where there is no supervision for us at all, and we will trust them.” Frankly, it is a cop-out.
None the less, I am going to move to a close and thank my noble friend the Minister for the careful consideration that he gave to my amendment. I think that in some ways he is encouraging me to redraft it better for Report, as he pointed out its various flaws. He somewhat failed the acid test I set him of how his clause as currently drafted would deal with the situation of Professor Kathleen Stock. The noble Lord, Lord Grabiner, said that frankly it did not need to because existing provisions already do so and it was simply a failure of the university to apply them. If that is the Minister’s view, I think he should say so. Still, I am grateful to him because he gave very careful consideration to the amendment. With that, I beg leave to withdraw the amendment.
Lord Willetts
Member’s explanatory statement
This amendment is to ensure – and make explicit – that the Bill does not impose duties on universities that are inconsistent with other legal duties that apply to them.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
I should point out to the noble Lord that if he wishes to speak again on his amendment then I will have to put the amendment and it will be open to further debate. Of course, I do not seek to influence the noble Lord in any way.
Lord Willetts (Con)
I will resist. I shall not move the amendment, and I look forward to further exchanges.
Lord Moylan
“A4 Duty to secure freedom of speech and academic freedom: funding and grantsThe governing body of a registered higher education provider must take reasonable steps to ensure that grants of funds by the provider for the purposes of academic research are not refused to—(a) any individual member or group of members of staff of the provider,(b) any member or group of members of the provider, or(c) any student or group of students of the provider,on the grounds, solely or inter alia, that such persons adhere to or propagate any particular lawfully-held principle or political opinion.”Member’s explanatory statement
This amendment prevents discrimination in the distribution of research funding by higher education providers based wholly or in part on the lawfully-held principles or political opinions of the potential recipient.
Lord Moylan (Con)
My Lords, I struggle on, looking for the prospect of meaningful change. In this case, unlike the previous groups—in one I was seeking to amend an existing statute, while in the last one I was merely seeking to amend the wording of the current Bill—I am motivated by a sense of a lacuna on reading the Bill, particularly at Second Reading, and I made mention of this at the time.
It is a well-known fact that what makes the world go round is money. Money is a very sensitive subject when it comes to universities. It used not to be—it used to be that anyone in a university who mentioned anything as vulgar as money would not be invited back to high table—but now money is an important consideration. The Bill is not silent on money, of course; it has a section on overseas funding. It is not to that section that I am turning my attention. The lacuna that I referred to is that it appears to say nothing whatever about funding coming from domestic sources.
This series of probing amendments—if the Committee wishes me to refer to them, Amendments 34, 45 and 46—try to box the compass, so to speak, of the various sources of money and how they can be used to prohibit free speech. Amendment 34 discusses grants made by universities to academics working for them or within their ambit. Amendment 45 refers to grants made downwards, so to speak, by UK Research and Innovation. Amendment 46 relates to donations that are made to universities. All of these could be used in a manner that was intended to influence, limit or shape freedom of expression within a university.
Sometimes we actually welcome that. I notice that it is a normal condition of cancer research charities that recipients do not have anything to do with tobacco companies. Many noble Lords would welcome that; they would say it was a good interference with freedom of speech and freedom of action attached to a flow of money as a condition. However, once one grants that, one ends up asking where to draw the line. These amendments are intended to test the role of money in doing that.
It has been suggested that Amendment 45 could trip over the Haldane principle, which dates from nearly 100 years ago but is still very properly entrenched in our constitutional process—that decisions on grants for research purposes should not be made by Ministers but must be made independently, and therefore to legislate on the matter at all is to offend the Haldane principle. But it is not, of course, because nothing in my amendment gives Ministers any power at all. There is nothing in the amendment that even relates to Ministers. Rather, it says that we as Parliament would be creating conditions, which we already do, for the operation and manner of operation of UKRI. I do not believe that Amendment 45 conflicts with the Haldane principle at all. I would very much like to hear my noble friend the Minister respond, so I shall not go into further detail.
Lord Sikka (Lab)
My Lords, it is a great pleasure to follow the noble Lord, Lord Moylan, on this. He mentioned money; I wish I had some, like many other people. Let me declare an interest: I am emeritus professor at the University of Essex and the University of Sheffield.
My amendment seeks to loosen the shackles imposed by private sector research funders upon the ability of academics to publish research. Those shackles have got much tighter with the advent of the research excellence framework, which attaches weight to the external research funding that is raised by universities. Within universities, indeed, any academic these days wishing to be promoted has to show that he or she has managed to secure a lot of research funding.
This research funding comes with lots and lots of strings attached, which raises conflicts of interest. Can your Lordships imagine trying to get some research money to look into gambling or the development of weapons? It would come from the gambling industry or from British Aerospace and others. Then if you produce research which is critical, would they really let you publish it? That is really the question.
I have looked at many research contracts—some colleagues have told me about them—that include clauses which give the funders the final say on whether the research can be published. Funders can vet, and have vetted, the research questions, methodologies and methods, data analysis and the conclusions of the studies. In many cases, draft papers need to be submitted to the funders. I have experienced that myself, and their approval is needed before anything can be disseminated, perhaps at a conference—because many academics present papers at conferences before they submit them to any peer-reviewed journal—so they need to be vetted. Funders can block, delay, or demand changes to the papers because they do not like the research findings, or they may just sit on the paper for a prolonged period to make its research very stale and untimely. Again, I have experienced that, as I explained at Second Reading.
One prominent scholar told a peer-reviewed journal:
“In our commissioned research project, the commissioner’s representative interfered with both the entire study and the publication because I did not let him influence the sample. Instead of random sampling, we should have made a ‘comfort sample’.”
There is a classic example of a pharmaceutical company funding a researcher to compare its branded thyroid drug with a generic competitor’s. The researcher found that the generic products were as good as the expensive branded products. The publication of the research could have jeopardised the funder’s sales and profits so the drug company went to enormous lengths to suppress the research, including taking legal action against the researcher and her university to prevent the paper’s publication.
In the past few days, one UK academic told me that the funder vetted his paper and did not like the negative health effects associated with the consumption of processed food. The funder decided that some cases of negative effects were outliers and were to be eliminated from the paper. It is bit like saying, “Somebody has died from this disease but it is an outlier so let us ignore and suppress it”. The academic concerned refused to accommodate the changes and the paper was never presented at a conference nor published. Another academic told me:
“The funder demanded control of all the raw data relating to the negative effects of a drug. Under pressure, I agreed. Subsequently, the funder would not allow me to release the data to a peer-reviewed journal and I could not publish the study, which was less than complimentary about the funder’s products.”
Over the years, several studies have established links between passive smoking and lung cancer. Tobacco companies have a long history of trying to subvert research by framing the research questions, designing the study, collecting and providing data and even writing the final papers for academics. Industry funding and the quest for research grants have persuaded many scholars to ignore important research questions because they simply will not get funding otherwise. Indeed, in my own field, it is incredibly rare to find research that is critical of auditing or the anti-social practices of the finance industry. None is ever funded by anybody from the City or the world of accounting because that is not the kind of thing that they fund. Many academics also do not do that kind of research because it jeopardises their chances of getting research funding from the world of accounting and the City, so such issues are basically ignored.
The Government are also a culprit. Commenting on a June 2016 report by Sir Stephen Sedley, Missing Evidence: An Inquiry into the Delayed Publication of Government-Commissioned Research, Nick Ross concluded that
“expensively commissioned findings sometimes fail to see the light of day and weak rules are used to bury unwelcome evidence for long enough to make it stale.”
In November 2020, the British Medical Journal published an article, “Covid-19: Politicisation, ‘Corruption’ and Suppression of Science”, which reported four instances of the suppression of science during the pandemic. It was all to do with the government-funded research. One instance related to the suppression of the 2016 study codenamed Operation Cygnus, which documented deficiencies in the UK’s pandemic preparedness. The report was eventually released in 2020 after an outcry in the media and interventions by the freedom of information commissioner. The Government did not want to publish it; their suppression denied the public, parliamentarians and medical communities vital information. The funder of the study stifled the debate.
The BMJ reported that a Public Health England report on Covid-19 and inequalities was delayed by the Department of Health; a section on ethnic minorities was initially withheld and then, following public outcry, was published as part of a follow-up report in 2020. Authors from Public Health England were instructed not to talk to the media about it. On 15 October 2020, Richard Horton, editor of the Lancet, publicly stated that an author of a research paper, a government scientist, was being blocked by the Government from speaking to the media because of a “difficult political landscape.”
Another example relates to what the Government codenamed Operation Moonshot. The project required an immediate and wide availability of accurate, rapid diagnostic tests for Covid. This research concluded that the Government procured an antibody test, which cost £75 million, that in real-world tests fell well short of the performance claims made by its manufacturer. Researchers from Public Health England and collaborating institutions sought to publish their study findings before the Government committed to buying a million of these tests but were blocked from releasing them by the Department of Health and the Prime Minister’s office. Public Health England then unsuccessfully attempted to block the British Medical Journal’s press release about the research paper. The reason for all this was that the research was damaging to the commercial interests of the corporation involved in these tests.
I have provided only a brief glimpse of some of the ways in which academic research is subverted and suppressed and, consequently, scholars and policymakers are denied the opportunity to see the evidence, data and findings. This is damaging to academic freedoms, scholarly endeavours and society as a whole. Amendment 53 seeks to prevent funders exercising undue influence on the design, conduct and dissemination of research. After all, what kind of expertise do they have in these matters? If they had any, maybe they would be doing the research themselves. This amendment makes scholars, their communities and journal reviewers the final arbiters of the quality of research. I urge the Minister and the House to support it.
Lord Triesman (Lab)
My Lords, I can probably do this quite briefly. These are very helpful amendments, which illustrate an extremely important point. To work out why or how the Bill will be useful or effective, it is important to understand what academics do—what life on the ground is actually like and what having a career entails. I want to follow my noble friend Lord Smith of Finsbury’s earlier comments, but I think that is for a later debate. If academics want to pursue a career, there are facts on the ground that cannot be overlooked, and these amendments address them.
There is a longish history to this; I must confess to having my fingerprints on parts of the REF at different times in the past, so I want to acknowledge that I have probably contributed to a problem. Today, if you want to make progress, it is entirely commonplace in universities to expect that, in the last period of assessment of research, you will have produced at least three articles in reputable referee journals. If you have not done so, you will not be promoted and if you do not have tenure, you will probably not survive at all. It is imperative. It is a gating process about which this Grand Committee will do nothing, because it is not in our power, but that is how it happens.
Baroness Smith of Newnham (LD)
My Lords, I realise that people have been declaring interests at various points during proceedings. As an academic I assumed, having declared my interests at the start of proceedings on Monday for the same Committee that I did not need to rehearse them again. If necessary, I am happy to rehearse my interests at Cambridge University and associations with other higher education organisations.
The noble Lord, Lord Triesman, has begun to flesh out slightly that there is a difference between two types of funding. There is research grant funding which might come from UKRI, where one would imagine it should be funding blue-sky thinking. The ideas in the amendments proposed today—whether they have appropriate wording or not—are that people’s academic freedoms should not be damaged, everyone should have an equal chance to secure funding and that should not be constrained in any way, for example, by one’s political beliefs. It is difficult for anyone to refute that suggestion. However, if an academic proposes to do research for a third party, where that party is looking for findings in a certain area and wants certain things to be done, if they are then engaged in a contract the person providing funding might reasonably say “Actually, I don’t wish this research to be funded”.
This goes back to “unintended consequences”. I wonder whether these amendments work for the contracts or consultancy that academics might be undertaking, which is quite different. If you undertake consultancy, its funder might not want to publish the findings because they do not meet what they expected. It is quite difficult to see how you could constrain a funder in that way, when it is a different sort of research funding to that which a university or UKRI might provide to individual academics. I am not opposing the amendments but I wonder whether some of these things need to be explored a little further.
Lord Stevens of Birmingham (CB)
My Lords, I should take the noble Baroness’s prompt and declare my interest as an honorary fellow at Balliol. I was prompted to speak by what has just been said in respect of the amendment from the noble Lord, Lord Sikka. He makes a very important point but, were this to progress beyond Committee, it would require very careful attention to the wording so as not to produce completely counterproductive results.
I was looking it up as the noble Lord was speaking, and I think I am correct in saying that, in 2019, about a quarter of R&D was via the higher education sector and about two-thirds was through the business sector. There is a sort of make-buy boundary, a decision, for a lot of research funders as to where they will get their research done. It just happens to be a contingent fact that quite a lot of that is done through the university sector, but it need not be. As worded, the amendment would capture, for example, conversations that the Wellcome Trust or Cancer Research UK would want to have with individual academic research teams, particularly about their research methodologies. Those are very productive conversations that improve the quality of research. So I understand the thought, but the precise mechanism perhaps warrants further attention.
More broadly, I oppose Amendment 34 from the noble Lord, Lord Moylan, specifically in relation to its suggestion that statute should be interfering in the discretion that universities have in grant funding allocations where the amendment says that universities would no longer be able to take into account in those grant allocations the lawfully held principles that individual researchers might adhere to. I get the bit about political opinion, but the “principle” bit is, I think, potentially quite problematic. One of the many dictionary definitions of a “principle” is “a general scientific theorem with numerous special applications across a wide field”. If you do not believe in the scientific basis of cell biology and have a particular “principled” adoption of homeopathic beliefs in bio-miasms, you will be driven in a particular direction. It seems to me that universities have a responsibility to say no to putting homeopathy funding on an equal basis with anything else. We want them, in pursuit of their distinctive mission to advance knowledge and education through structured debate and evidence-based reasoning, to be able to say no so that research on certain “principled beliefs” can be disbarred.
This comes back to the confusion that we touched upon on Monday. The Minister dealt with this point in respect of the employment of academics but, when it comes to the grant funding, we cannot have a situation in which universities’ hands are tied and they are not able to make judgments as to the merit on which those grants are allocated across their institutions. It is the inclusion of the phrase “the principles” of the contending grant application that ensures that, unfortunately, Amendment 34 as currently worded is fundamentally flawed.
Baroness Fox of Buckley (Non-Afl)
My Lords, I really welcome the contributions of the noble Lords, Lord Sikka and Lord Moylan, on their amendments, because this issue of money is important and it is a good way of getting the discussion going—or not just to discuss for the sake of it.
What I cannot get my head around is how in any way you can legislate on this. I cannot see a way of doing it, even though I think I have added my name to one of the amendments. But it is important to discuss this. As I listened to the noble Lord, Lord Sikka, I thought he made a very strong case for the problem of corporate funding of research if it distorts outcomes. Nobody wants that, but I do not necessarily know that I do not want any corporate funding of research—so the question is how you deal with it.
It is also the case that, these days, some of the big players in terms of funding are charities or NGOs. We mentioned the Wellcome Trust, which I worked with for many years. It is true that the Wellcome Trust would often say, “These are our priorities this year” and you knew that, if you wanted a Wellcome Trust grant, you had to fit your research into those priorities. That had a distorting impact—I am not suggesting it was corrupt in any way, but you knew that was the way that you would get the money. I certainly know people who shifted their focus in order to get the grants.
This is important in terms of academic freedom. I wonder if the popularity of politicians saying, “The evidence shows”, and evidence-based policy being fashionable incentivise a tendency towards politicised research outcomes. There is a sense in which a lot of academics have wanted to be in on the policy discussion, often with outcomes predetermined. There have been times when I have said to Ministers, “Where’s the evidence for that?”, and they have said, “We have commissioned the evidence”—but they were announcing the policy. Do not tell me that it has not happened before because it happens all the time. They have commissioned the evidence from a university, in fact. I am just saying.
The reason why I think it is important that research is completely separate from that is because there is a place where academic freedom is under the surface and genuinely under threat, although I do not know whether the law can change that. I know of two people who put in for research on detransitioning—to raise that issue—and they were told there was just not a cat in hell’s chance of getting any funding for that because it was going to be too controversial. Whether we like it or not, the broad problems around some of the other issues in terms of what you can and cannot look at are affecting what is funded in terms of research, particularly postgrad research. There are a lot of complaints about that when you meet postgraduates.
By the way, that does not mean I do not appreciate what the noble Lord, Lord Stevens, said. It is also the case that people can for ever more moan that they are not getting their research funded when it is actually no good, and that actually, you do want academic judgment. I am just pointing out that politics enters into it.
The one thing that I am really concerned about is that UKRI, which after all distributes billions of pounds of research money, produced a draft equality, diversity and inclusion strategy—my favourite topic—earlier in the year, in January, which is a cataclysm of management-speak and right-on political outlooks. You could write it; you know exactly what it is going to say and do. A lot of it is about its staff, which is fine. I have no objection to that. But I worry when it starts basically to express its political aims. You have to question its impartiality.
As far as I am concerned, in the sciences the money should be given to the best science that advances knowledge; it is not humanities research, which is likely to give us interesting insights, and so on. But UKRI demands of people that apply for it that they deliver on the diversity and equality outcomes. A lot of people who read that immediately thought, “How do I prove that?” That is a layer of work that you have to do that you do not need to do. The document sounds quite threatening: “If you don’t tell us when you apply for this that you’re going to deliver on these things, you won’t get it.” So great science is sidelined in the name of equality, diversity and inclusion. That is something that we have to watch. I do not know if the Bill can do anything. I am hoping it will create a climate of discussion about the importance of academic freedom that will counter some of these trends and some of the secret censorship that goes on behind the scenes.
Baroness Chakrabarti (Lab)
My Lords, like the noble Baroness, Lady Smith of Newnham, I would be grateful for guidance from someone as to how often one is to redeclare interests in the course of Committee. Should one do it in every group that one speaks on? I am sure there is an answer and that this is just my ignorance. I gather that it is once, but is it once a day or once in Committee in total? I have done it today.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
For clarification, it seems that it is once for the Committee stage rather than each time we speak.
Baroness Chakrabarti (Lab)
I am grateful to the Deputy Chairman. I hope the Committee will forgive my ignorance; I hope that will help others as well.
I think noble Lords are really on to something here. I have found all the previous contributions compelling. They speak to aspects of my own experience. I have seen the way that funding can either promote or chill free speech, expression and academic inquiry. I understand that there are real challenges in this area. In particular, it is going to be very difficult to compel a corporation in any way to fund research that would be directly contrary to its interests. However, I do not think that we should totally give up on all of this; I do think that my noble friend Lord Sikka and the noble Lord, Lord Moylan, are on to something.
Baroness Falkner of Margravine (CB)
My Lords, on this occasion, I declare my interest as chair of the Equality and Human Rights Commission.
I had a lot of sympathy for the myriad examples put up by the noble Lord, Lord Sikka. In fact, beyond sympathy, to address the noble Lord, Lord Moylan, I had some deep concerns. However, on hearing many of those examples, they were entirely familiar to me. I recall having come across them in the media, if nowhere else.
The point made by the noble Baroness, Lady Smith of Newnham, about how this amendment would apply to third parties commissioning research was really significant. All manner of bodies use university academics to do a piece of research for them, including collecting and collating survey evidence and/or other evidence—particularly in the social sciences and humanities, where it is a bigger problem because the boundaries are less clear-cut.
In the past, much of our non-statutory guidance has been based on that kind of research because you seek to find an evidence base for whatever you are saying. We have had complaints about some of the stuff we have said; in fact, my daily joy is opening my parliamentary email and finding complaints addressed to me in that capacity rather than the correct capacity. However, when you look into what people are complaining about, you can find that the survey evidence was perhaps interpreted in a certain way or that the methodology does not stand up today to the contemporary standards that one would wish to use. The noble Baroness, Lady Chakrabarti, rightly raised some of the ambiguities that lie there if this serious and important amendment is taken away and reflected back to us on Report.
The noble Baroness also raised the issue of academic standards. You get a great diversity in institutions as regards the quality of research. If you found that you perhaps ended up having commissioned an institution that did not deliver for you, I would hope that any amendment that we might seek to make would emphasise the fact that you can only take reasonable steps and that where it says in proposed new Section A8(2) that
“providers must not require changes to academic research as a condition for a grant”,
the change does not come at that stage; it might come when you look at the data collection.
An example of data collection in our case is that the majority of the UN conventions that we apply tend to have been written immediately after the Second World War, generally between 1945 and 1960, and they use language that muddies the water. The convention on the elimination of racial discrimination is a good case in point because it refers over and over again to nationality, whereas frequently what we look for in racial discrimination is not necessarily the Polish person suffering race discrimination but potentially the Afro-Caribbean or African or Asian person. You commission the research and then you discover that the dataset does not hold up, because nationality was taken into account by the researchers rather than particular ethnicity; you might have wanted a narrower framework.
I urge the Minister, if he is inclined to take on board the amendment, which is significant and important, to clarify those things for us when we come back to this.
Lord Willetts (Con)
My Lords, I will briefly make three comments on this debate; I realise that I will not occupy the same moral high ground as most of the participants in the debate so far.
The reality is often that co-funding, with public money and private money, is going into research projects which are believed to be of value for the British economy. I will give your Lordships a simple example. You may find that some public funding is going into a wind tunnel and some Rolls-Royce money is going into it so that it can research the functioning of a jet engine and improve Rolls-Royce’s capacity to be a market leader in jet engines. A lot of that goes on. Indeed, in a different part of the woods, we are told that more of that should go on and that we should be thinking more fully about how we use publicly funded research to promote business investment. There are lots of reasons for being wary but those type of relationships exist, and if anything, are being encouraged, and would not be possible under the provisions here. That is my first point.
Secondly, the American pressure on us with regard to the research we conduct and then publish, is because by and large they think we are very naive about what they call dual-use research of concern. They think that we publish lots of stuff which is the equivalent of publishing nuclear physics in the early 1930s. There is a lot of pressure from them for us to publish less, and they think we are naive about some of the possible implications of the research. If we are to have research partnerships with these international partners, if anything, the pressures are the opposite of the ones we have been hearing this afternoon.
My third point is really a question for the Minister. This is an issue which raises another angle where there is concern about this legislation. It is marvellous to have a Minister from the Department for Education as well as a Minister from the Cabinet Office. Several provisions of the Bill relate to the activities of BEIS and our research effort. The research activities of universities are not part of the DfE, and it would be good to be reassured that, on many provisions of this legislation which affect research capacity, we will have the voice of the business department, which is the ultimate responsible body, and that there has been suitable liaison across departments so that implications for research and innovation are properly considered as part of our deliberations.
Baroness Smith of Newnham (LD)
I think I have said everything that needed to be said from these Benches.
Lord Collins of Highbury (Lab)
I was tempted to declare my own interest as an assistant general secretary of a trade union that used to commission research. Once I knew the question and its answer, I would commission the research. There is that political side; social science is often involved in that sort of thing.
This has been a worthwhile debate. I am pretty certain that this Bill, or even this debate, is not the right place for these amendments.
The noble Lord, Lord Willetts, raised some fundamental points. One of my responsibilities is as the shadow FCDO Minister. In global research, how research—particularly medical research—can be innovative, and who controls and pays for it, is an interesting question. I certainly do not relate that to academic freedom; that is a different, commercial issue.
The noble Lord, Lord Stevens, made the excellent point that, if you are going to do research in a particular medical area, you are not going to be bound by employing someone who has no interest in pursuing that line of inquiry. For me, whenever these sorts of questions come up, the interesting thing about the sort of research done by my noble friend Lord Sikka is that the key is always transparency. Whenever a piece of research is published, I want to know who has funded it. I want to know who is ultimately responsible. To me, that is absolutely the key to this issue.
I was going to ask the Minister about impact; the noble Lord, Lord Moylan, raised this. Students Organising for Sustainability asked whether these duties would present a conflict between some universities’ health departments—at Imperial, for example—that have funding conditional on not recommending big tobacco in their careers service? That relates to advisers and freedom of speech. It would be interesting to hear the Minister’s view on that in relation to the debate on these amendments.
I have promoted debates in the Chamber on the broader issue of commercial research, particularly about who at the end of the day owns and controls the—I have a mental block.
Lord Collins of Highbury (Lab)
Yes. Then we get into a much bigger question, which for me is the most important political question. I know my noble friend has also entered into debates on that issue, including on TRIPS and stuff like that.
I will be interested to hear the Minister’s response to this point. Personally, I do not think that these amendments are in the right Bill or the right place.
Earl Howe (Con)
My Lords, this group of amendments relates to impartial research funding. Amendment 34 in the name of my noble friend Lord Moylan would introduce a new duty to require higher education providers to take reasonable steps not to refuse to grant funds for research because of a recipient’s lawful principles or political opinions.
Amendments 45 and 46, also tabled by my noble friend, seek to make clear, first, in respect of donations and sponsorship to registered higher education providers and, secondly, in respect of funding through UK Research and Innovation, that the donor, grantor or provider may never restrict the freedom of speech of those working under the funding. Amendment 53 in the name of the noble Lord, Lord Sikka, is about the awards of grants for academic research.
Lord Moylan (Con)
My Lords, given the hour, I will be brief on this occasion. I am grateful to my noble friend the Minister for explaining that, despite the fact that there is no explicit mention in the Bill of the large and important topic of money and how it makes universities go round, it is there; it is just that none of us had spotted it. Let us hope that those who are directly within the ambit of the Bill, if it becomes an Act, will be able to spot it. I would have thought that it would have been helpful to have a few words in the Bill to that effect but, no, it is there—only in a subterranean way. So we must all take comfort from that.
I am very grateful to all noble Lords who have contributed. I am particularly grateful that, on this occasion at least, they agree with me that this is an important and large topic. I am simply disappointed that, at least for the two Front Bench spokesmen, it is simply too large to put in the Bill. It is too big; it is too complicated; it is very important but—
Baroness Smith of Newnham (LD)
I did not say from these Benches that it was too big to be included. I suggested that there needs to be more discussion and clarification of the issues at stake because they are even broader than the noble Lords, Lord Moylan and Lord Sikka, were discussing. That is not to say that they should not be included.
Lord Moylan (Con)
I am very grateful for that clarification, which I take as an encouragement to myself and the noble Lord, Lord Sikka, to enter discussions with the noble Baroness as we prepare for the next stage of the Bill to reach satisfactory wording on the topic.
Finally, I simply say how very grateful I am to everybody who spoke in the debate and managed not to say that it should be dealt with in the code of conduct. With that, and given the lateness of the hour—though I suspect the topic may come back—I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)
For the convenience of the Committee, the noble Lord, Lord Moylan, has already withdrawn his amendment and no one has objected to that.
“Duties of students’ unions
(1) Section 22 of the Education Act 1994 is amended as follows.(2) In subsection (1), at end insert “and secures freedom of speech within the law for members of the students’ union, students of the provider, staff of the students’ union, staff and members of the provider and of its constituent institutions, and visiting speakers.”(3) In subsection (2), at end insert—“(o) the use of any premises occupied by the students’ union is not denied to any individual or body on grounds in relation to an individual or society or other body’s ideas, beliefs or views;(p) the terms on which such premises are provided are not to any extent based on such grounds;(q) affiliation to the students’ union is not denied to any student society on such grounds; (r) use by any individual or body of premises occupied by the students’ union is not on terms that require the individual or body to bear some or all of the costs of security relating to their use of the premises.”(4) After subsection (3) insert—“(3A) The code of practice shall set out—(a) the students’ union’s values relating to freedom of speech and an explanation of how those values uphold freedom of speech;(b) the procedures to be followed by its staff and its members who are students of the registered higher education provider in connection with the organisation of—(i) meetings which are to be held on the premises occupied by the students’ union and which fall within any class of meeting specified in the code, and(ii) other activities which are to take place on those premises and which fall within any class of activity so specified;(c) the conduct required of such persons in connection with any such meeting or activity; and(d) the criteria to be used by the students’ union in making decisions about the union’s support and funding for events and activities to which the duties in this section are relevant, and whether to allow the use of premises and on what terms.””Member’s explanatory statement
This amendment suggests an alternative method for placing duties on students' unions by amending the Education Act 1994, and along with the proposed removal of clause 7 seeks to probe whether the OfS should directly regulate SUs or whether they should be regulated via the relevant provider.
Baroness Garden of Frognal (LD)
My Lords, I will also speak to the Clause 7 stand part notice in my name and that of my noble friend Lord Wallace, who is absent. I note with interest that the noble Baroness, Lady Fox, referred earlier to the HEPI report on students, which made interesting but fairly depressing reading—particularly with regard to students these days being very reluctant to discuss anything with which they disagree.
These amendments are at the requests of students and student unions, which are very concerned that provisions in this Bill could involve them in costly, time-consuming administration and litigation. Our revised Clause 3 aims to provide clarity on the responsibilities for freedom of speech in a more student-friendly manner. We were also alerted to the problems of geography. Many higher education providers have operations overseas. Does free speech “within the law” mean the law at home or away? There are many Welsh and Scottish higher education providers that have campuses in England as well. Will these duties apply to all of them?
We note that student unions are not public authorities and so are not subject to regulation in the same way. Many of them may be tiny theatre providers; they may be further education providers with a handful of higher education students. Their governing bodies may be a small group of 17 year-old students. Are the provisions in Clause 3 really appropriate for such unions?
If Clause 3 is bad, Clause 7 is even worse. We read in that clause that an individual would be able to refer their complaint to the Office for Students complaints scheme at the same time as pursuing it through a provider or the student union’s internal procedures, which would surely be the appropriate way. It could also be addressed by the Office of the Independent Adjudicator for Higher Education, or a court or tribunal. How confusing and cumbersome this is. Surely such complaints should not be escalated; rather, they should be dealt with at the lowest possible level. Currently, the adjudicator considers students’ complaints only once the local process has been completed. For the Office for Students to rush in with a monetary penalty would surely be untimely and disproportionate. We really feel that this is not a reasonable use of the Office for Students’ powers.
At a later date, we shall come on to discuss the director of freedom of speech and academic freedom. It is not at all clear how that post will fit in with all these other complaints processes.
As I say, these amendments have been tabled at the request of students and student unions. On that basis, I beg to move.
Lord Triesman (Lab)
My Lords, this is probably the only appropriate place to raise this point. There was a debate earlier in which my friend, the noble Lord, Lord Smith of Finsbury—he may be on the Cross Benches but he is steadfastly a friend—and the noble Baronesses, Lady Fox and Lady Smith of Newnham, took part, about what the core functions of a university are and what its DNA is. I do not resile from what I said about the role of a university in the development of knowledge and the challenge to knowledge, but I would not for a moment suggest that that is the only function.
I come to the other thing that I think universities are fundamentally there for, because the students and student unions are so central to it. Universities are also the place where we see the transmission of knowledge between generations. They are the place in which we try to instil in students the methods best suited to elaborate knowledge and to challenge all spheres of knowledge, and to do so in a way that reflects the fact that it is a community. Those are also fundamental obligations of a university, and it would be very foolish if we were to neglect them.
The strength of the very word “collegiality” is that it means we believe that, in a collegial environment, people should not suppress the views of others, silence others or interfere with their individual rights. Apart from overcoming those negatives, it also cements together a community that has, if I may put it this way, a mutual obligation to proceed with respect. In my view, that is quite central to the DNA of a university.
I make these points because those frequently relatively young people—although it is a much more diverse age group now—are central to what we think about when we think about what universities do and how they should do it. Indeed, we have embodied in other legislation measures to deal with the quality of teaching to ensure that this part of what universities do is at the best standard that can be achieved, and we punish them by not letting them have gold stars or whatever if they fail to do it. Student unions are a part of that education provision, part of that community, and what we try to impose on them becomes extremely significant.
Baroness Fox of Buckley (Non-Afl)
My Lords, I thought long and hard about how to approach this debate because I support the autonomy of students to organise separately without interference, not just the academic autonomy that we have talked about—although I would like that. I also appreciate the points that have just been made about students not being excluded from collegiate atmosphere; you want them to be involved in it. On reflection, though, I think that student unions need to be subject to this obligation to secure free speech. However, I appreciate what has just been said about the difficulties in that; I have no solutions but I want to raise some of the issues.
One of those issues is that student unions have become the power brokers of free speech in the new free speech wars on campus. That is the reality of the situation. They can—and often do—withhold affiliation for student societies on the grounds that they disapprove of their views. It makes them a powerful body in this discussion.
One story that really shocked me was when Kevin Price, a Labour councillor who was also a porter at Clare College, resigned from Cambridge City Council when he felt that his conscience could not allow him to vote for a Liberal Democrat Motion that began, “Trans women are women. Trans men are men”. I am not saying that to make a point; these are the facts of the matter. When they learned about his actions, student activists at Clare College, with the support of the college union—I confess that I do not know about Oxbridge because I went to Warwick, but I know that these are not necessarily student unions; my point is that I get confused—held a campaign demanding that this man resign as a porter. They described him as
“unfit both to hold public office and to be in a position of responsibility over students”.
They called him a bigot and a “potential risk” to trans students.
This campaign went on for some time. Nothing happened in the end—although, needless to say, it was very unpleasant for Mr Price—but here were student activists demanding that a member of staff, and not even a member of the academic staff, be sacked. I just think there is something about that story that we can recognise.
The only other story I want to tell involves a group of students at Sheffield University who tried to set up a free speech society in February 2020. When they applied to the student union, their application was declined. Theirs is not the only example of this, by the way; it happened at LSE, which got there eventually, and at Leeds University as well.
The group from Sheffield appealed to the student union. They won—they had some outside back-up—but were told that the student union had identified that the free speech society was on a “red risk list”. This meant that officers would have to attend risk assessment training and that they could not invite any speakers on to campus without first having to submit a list of prospective speakers to the student union three weeks ahead of time for full and final approval.
That is one of many stories that any of the people who have done work on this will tell you. I have been involved in lot of them. Students have contacted me, either through a free speech union or through any number of different activist groups. Despite what the noble Lord, Lord Triesman, asked—“How will all these societies cope?”—I assure him that they are already having to cope with a lot of bureaucratic nonsense if they want to invite anyone on to campus to speak, and it is the student unions demanding it.
I once went and spoke at a student event with 250 people. I was giving a lecture on free speech. By the time I arrived at the event, the students who had invited me—remember, these were 19 year-old kids who had set up a free speech society—looked ashen as if they had gone through a terrible experience. They had because they had had so much trouble about inviting me, but I did not know that at that point. They looked as if they were in trauma. When the event was going on, there were three people sitting in the front row with crossed arms and writing notes. I thought that they did not look friendly. I asked afterwards who they were and was told that they were student union officers who had come in to check what I was talking about to make sure that I did not breach any rules. That was disconcerting.
I then went to the bar and the same three people sat at the table next to us. I said, “Do you want to join us?” They said no, and then they sat at their table in silence. It was a bit like the Stasi keeping their eye out. The students who had invited me said, “That’s what they do. It’s an intimidation tactic”—and it really was intimidating, by the way. I am an old hand and I found it intimidating, so imagine if you are 19.
The outcome of the event was that I did not get them into too much trouble but it was felt that it was too near the mark, so the students had to go on training courses and all the rest of it. The outcome—this is the significant bit—was that the three people who had set up the free speech society at that university said that they were going to drop out of politics because they could not cope with the student union. They did not want the hassle. They had really enjoyed my speech but it was like an ordeal. As it happens, the Committee will be unsurprised to know that this has happened to a lot of students who have invited me to speak, to such an extent that I now warn them off from inviting me to speak and say, “Look, you don’t want the hassle, to be frank. It will cause you a lot of hassle.” So I do not get cancelled before I arrive because I know that it is probably not worth putting the kids through that.
The main reason why I am telling the Committee all this is that it is the student unions that are implementing all this. In that sense, my collegiate feeling towards student unions have evaporated somewhat, but my collegiate feelings towards those students who want to be politically active have extended. I am hoping that, by incorporating student unions and putting free speech at the forefront, this Bill might help students to be free to organise societies as they wish.
Lord Smith of Finsbury (Non-Afl)
My Lords, I should probably have declared an interest when I spoke earlier, not just as the master of Pembroke College, Cambridge, but as the chair of the trustees of the Cambridge Union Society. It is not a student union. It has been a place of free speech since 1815 and continues to be so. The student officers of the Cambridge Union Society regularly invite highly controversial speakers with whom there will be substantial disagreement among the student body, but the whole point is to hear views and debate them. That is how these things ought to happen.
Baroness Thornton (Lab)
My Lords, my main regret about this debate is that my noble friend Lord Triesman did not mention the London School of Economics, which is where I went. While we were having this debate, I looked it up and there are hundreds of societies at the LSE. I enjoyed the fact that, if you look at the history of the student union—the student union at the LSE is the oldest in the country—you find that I feature in there, having led occupations of the director’s studio for the nursery campaign in the early 1970s. I was trying to think how on earth we would have coped with this legislation when I was a member of the student union executive at the London School of Economics in the early 1970s.
My noble friend Lord Triesman was quite right. As the noble Lord, Lord Smith, said, I do not think what is in the Bill at the moment meets the test of what will actually work and be able to be delivered by our student bodies. It is too complex. My understanding is that student unions also have the Charity Commissioners as part of their regulation, so that adds extra complexity to this issue.
I think I agree with other noble Lords that the Government need to look at this issue again. The noble Baroness’s amendment might provide a good basis for something that is simpler and which can actually be delivered by 18 and 19 year-olds. I look at the Bill team, and some of them are not that far away from having been rather young. They need to think back to what they would have done in their student days and how they might have been able to protect the right of freedom of speech then.
This is one of those occasions when the Government might need to look at this again and ask whether it will work as it is intended. Have discussions taken place with student union representatives in a process of asking them how this will work and whether it will be able to be carried through?
In case noble Lords are looking it up, my name does not appear but I did lead the occupation of the director’s studio for the nursery campaign.
Earl Howe (Con)
My Lords, Amendment 47 in the names of the noble Baroness, Lady Garden of Frognal, and her colleague the noble Lord, Lord Wallace of Saltaire, seeks to change the way in which student unions are regulated under the Bill.
This amendment would remove the duties on student unions in Clause 3, and instead add them to the duties on providers under the Education Act 1994. The addition of these requirements to that Act would mean that the duty would be on the governing body of the provider to
“take such steps as are reasonably practicable to secure”
the various requirements set out in the amendment and no direct duties would be imposed on student unions. Amendment 47 would therefore make Clause 7 unnecessary. I note the wish of the noble Baroness to remove the clause from the Bill altogether.
Extending the legislative framework to student unions at approved fee cap providers under Clause 3 is a significant step, which fills a gap in the current legislative framework. Freedom of speech on our campuses is an essential element of university life. Student unions play a vital role in this, providing services and support, representing their members and working closely with their provider. It is important that these bodies are accountable for their actions.
There are examples of where student unions have failed to secure freedom of speech. Notably, the student union at Swansea University failed to support members of the university’s Feminist Society, who were threatened and abused for supporting Kathleen Stock—a name I am sure we recognise by now. Rather than protect their freedom of speech, the student union removed the society’s email account and profile page from its systems, denying this group an important platform for reaching others. This incident illustrates the need for action to ensure that student unions are subject to duties on freedom of speech, since we cannot allow that sort of behaviour to continue unchallenged and unregulated.
I noted the support for the amendment expressed by the noble Lord, Lord Smith of Finsbury, but if we took the approach proposed in Amendment 47, the duty would be on the provider to take reasonably practicable steps to secure the various freedom of speech obligations, as I have said, but there would be no requirement on student unions to comply with those requirements. If they did not, this would potentially only result in an internal dispute with the provider.
Although the Charity Commission is involved in regulating student unions which are charities, that is only in respect of charity law. There would also be no oversight of whether or not providers comply with the duty imposed on them. This means that there would be no enforcement or regulatory action taken if they failed to do so.
Finally, and perhaps most importantly in the context of the new regime that this Bill will establish, there would be no means for individuals whose freedom of speech has been improperly restricted to seek recompense. Since the Bill will impose new duties on student unions, it is also necessary that mechanisms are in place to ensure that compliance with the freedom of speech duties of student unions is monitored effectively and that action is taken if those duties are infringed upon.
The noble Lord, Lord Triesman, read into these provisions a burdensome requirement placed on every single student society in every university in England. I make it clear to him that the duties are on student unions and not student societies, even though they may be affiliated with their student union. In practice, this means that only the student union—that is to say, one union per provider—will be regulated.
Clause 7 therefore extends the regulatory functions of the Office for Students so that it can regulate these student unions. This new provision will require the OfS to monitor whether student unions are complying with their duties under new Sections A5 and A6 as inserted by Clause 3. If it appears to the OfS that a student union is failing or has failed to comply with its duties, it will be able to impose a monetary penalty.
Baroness Thornton (Lab)
I need some clarification from the noble Earl. I suspect that most of the things that have caused problems have been organised by the societies and all the organisations that are part of the student union. At the LSE, we had a rugby club that invited strippers to its annual dinner—you can imagine how well that went down—but it was not the student union that dealt with that. It was not its job to deal with what the rugby club was doing. This was a very long time ago, but lots of the things that we have been calling in aid in this Bill have not been organised by student unions. Some will have been, but most will have been organised by their constituent parts—the societies and other parts of the student union.
Earl Howe (Con)
I take the noble Baroness’s point. Those societies will be expected to abide by a code of practice which will be promulgated to all students. While the societies will not be subjected to the full extent of the regulation that I have been talking about, expectations will be placed on them. I cannot yet tell the noble Baroness what will be contained in the code of practice but, as I have mentioned, that code will receive appropriate publicity.
Lord Triesman (Lab)
To be very clear, I have no difficulty at all with the concept that people in student unions who impede the free speech and academic freedom of others must be dealt with. For the record, I do not have a second’s question about that. I just want us to do things in this Bill that we can actually do. I wonder whether the noble Earl, Lord Howe, might discuss this offline with some of us who have helped to run these kinds of institutions in the past to see whether there is a practical solution to the problem that my noble friend has just illustrated. I do not know about the LSE, but I will lay odds that most student unions find out what their rugby clubs have done months after the event, if they find out at all.
Earl Howe (Con)
I would hope that a rugby club would not be responsible for inviting somebody to talk about gender politics.
Lord Collins of Highbury (Lab)
The Minister is completely wrong about that. It is highly likely that they would, because there is a highly controversial issue around gender, sex and sport. I think he does not fully understand the range of issues that can be addressed by a huge range of societies in the university community.
Earl Howe (Con)
I bow to the noble Lord’s superior knowledge on this. If noble Lords will allow, I will conclude.
I mentioned the possibility of a monetary penalty, which was raised by the noble Baroness, Lady Garden. The power to impose a monetary penalty is based on the existing enforcement regime for higher education providers and is intended, obviously, to encourage compliance.
New Section 69B will also require the OfS to maintain and publish a list of student unions at approved fee cap providers. This will make it clear which student unions the OfS has been informed by its providers are subject to the duties in new Sections A5 and A6. It will also require those student unions to provide the OfS with information it may require for the performance of its functions. These are new regulatory functions, intended to ensure compliance by student unions with their new duties. Together with Clause 3, this clause will ensure that freedom of speech is protected by not just higher education providers but student unions.
Baroness Garden of Frognal (LD)
I thank the Minister very much for his reply and all those who have spoken in this short debate. There are more issues that we might need to bring back on Report, but meanwhile I beg leave to withdraw my amendment.
Higher Education (Freedom of Speech) Bill
Monday 14th November 2022
(2 years, 1 month ago)
Lords ChamberRead Full debate Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 30-III Third marshalled list for Committee - (10 Nov 2022)
Lord Etherton
Member’s explanatory statement
This amendment narrows and provides certainty as to those entitled to enforce the statutory tort by limiting enforcement to a person for whose benefit there is a duty to secure freedom of speech and, consistent with the Explanatory Notes, only if that person has suffered loss caused by breach of the duty.
Lord Etherton (CB)
I declare my interest as a visiting professor at Birkbeck, University of London. My amendment is not directed at anything other than technical—but important—deficiencies in Clause 4. I am concerned about the appropriateness of this provision as it stands. I am sure that many here will say that it is neither appropriate nor necessary for Clause 4 to be there at all, but that is not my purpose: my purpose is to make it work if it stays. The Minister will be aware of my concerns about this provision.
There are two critical deficiencies at the moment. The Explanatory Notes state:
“Clause 4 … creates a new statutory tort”.
My first question is whether damage or loss is necessary to make the statutory tort enforceable. Briefly, some torts, such as negligence or nuisance, require loss or damage to give rise to an enforceable legal right, but others, such as trespass, are actionable without proof of loss or damage. The clause, as it stands, does not indicate whether loss or damage is required for anybody to enforce this new right. The Explanatory Notes indicate in two paragraphs that the intention is that there should be “compensation for loss”. If that is the intention, that must be included somewhere in the definition of the tort itself to make it viable. I should add that, if loss or damage are not critical—if it is actionable, as it were, without loss or damage—it is extremely difficult to see what kind of order a court could make in practice that would deal with the situation that has arisen in relation to the non-securing of freedom of speech.
The second deficiency is that there is no description of the category of persons entitled to enforce this civil wrong. It is not limited in any way to any particular group of people, but I assume that the intention is that the category of people entitled to enforce the proposed new statutory tort are those to whom the providers of higher of education owe
“a duty to secure freedom of speech”.
Therefore, that point is also included in my amendment.
I finish simply by saying that if the clause and the new tort are to remain, it is critical that the latter becomes a recognisable and legally enforceable tort with those additions.
Lord Grabiner (CB)
My Lords, the premise of the amendment moved by the noble and learned Lord, Lord Etherton, is a presupposition that the clause remains. I will be a little more ambitious by arguing that the provision is in fact otiose and we would do well to get rid of it.
I support the view that the clause should be deleted—as I think the Minister is aware—because three points seem to militate against the introduction of this brand new civil cause of action. First, it should not be assumed that the ability to invoke the civil court process will operate as some sort of universal panacea which will resolve this problem at a stroke. Often, the legal process, especially a new-fangled one, confuses and undermines well-intentioned purposes. It is also often the case that the introduction of lawyers and the courts merely fuels increased tension. Speaking from my narrow professional perspective, the only guaranteed positive outcome is that the financial condition of both sides of the legal profession will be enhanced if Clause 4 is enacted.
Secondly, in this case, the Office for Students, and the OIA—as regulators with suitable powers and, as should be the case, an in-depth understanding of the higher education world—would be far better placed than a judge of the High Court to deal with the matters dealt with by the Bill. In principle, it should not be necessary to have a regulatory structure concurrently in place with a specially devised civil court process. The scope for confusion, and what I call trouble-making, is obvious.
Against that, I believe it is suggested that Clause 4 is necessary as some sort of backstop to the regulatory regime. The unsatisfactory implication from the backstop argument is that the regulators may not be up to snuff—for example, because they lack funding, expertise or the necessary powers.
The backstop argument is unprincipled and illogical. If, for whatever reason, the regulators are not good enough, that should be the focus of repair and improvement. We should not be in the business of bolstering the deficiencies of the regulatory structure with the court process contemplated by Clause 4.
In this connection, the Bill wholly fails to address the relationship between the regulatory regime and the new proposed civil action. Should one be exhausted before the other? If the complainant fails before one, should he, she or it be entitled to have a second bite of the cherry? Suppose the complainant succeeds before one, should the loser be entitled to seek declaratory relief from the other, to the effect that the first decision was wrong? The scope for confusion and what I call mischief-making is significant. My sense is that these potential complications have not been thought through or, if they have been, they have not been addressed in the drafting of the Bill.
My third point is that there will inevitably be pressure groups and mischief-makers who will wish to use the court process publicly to embarrass universities, colleges and student unions to advance their own branded ideology or view of the world. The potential for this sort of behaviour, particularly in this context, is boundless, I am afraid.
On Second Reading, in the Minister’s very clear explanation of the structure and content of the Bill and, in particular, in closing, he made three points in support of, or by way of justification for, Clause 4, and I should like to address these points. I would not and could not put words into the Minister’s mouth, but his position can fairly be summarised as acknowledging the objections to Clause 4 as seriously held opinions but that, in his view, the concerns expressed were, on analysis, and for the three reasons he gave, more imagined than real. I cite Hansard of 28 June, col. 633.
The Minister said, first, that it would be very difficult for a claimant, especially a vexatious one, to establish the requisite duty of care without which the statutory duty could not be said to be breached and the claim would swiftly be dismissed. Secondly, he said that it would be necessary for the claimant to prove what he called “genuine and material loss”, by which I assume he meant financial loss. The Minister said that this would be a tough hurdle, which few claimants could clear. Thirdly, he said the claimant would find civil proceedings expensive, especially if he lost and ended up having to pay his own and a significant element of the fees incurred by the university, college or student union, as the case may be.
I should like to deal with each of those points because, in my view, none of them withstands detailed analysis. First, the persons to whom the proposed duties would be owed are identified in the Bill, in new Section A1(2) in Clause 1, as staff, members, students and visiting speakers, and in new Section A5(2) in Clause 3, as
“members of the students’ union … students … staff of the students’ union … staff and members of the provider and … visiting speakers”.
Potentially that includes a lot of people, as well as organisations with which they may be associated. It is also the case that, as has often been said by judges at the highest level, the categories of duty are never closed. The common law develops piecemeal through changing circumstances; it is a living thing, and there is every reason to suppose that, ultimately, these duties will be held to be owed to persons or organisations whose behaviours and beliefs will or may be regarded as lawful but nevertheless deeply offensive to many listeners or observers. If the claimant presents an arguable case that he, she or it is owed a duty of care, the claim will be permitted to proceed; it will not be struck out at the preliminary stage.
The second point, to the effect that the claimant would have to show “genuine and material loss” needs careful scrutiny. The impression given by those words is that it means significant financial loss—that is, in order to succeed, the Clause 4 claimant would have to prove that he had suffered a real level of financial loss as a consequence of the breach of duty. I would be most grateful if the Minister would explain to us what they mean, if not that type of loss.
Before getting into the meaning of genuine and material loss, there is an important anterior question. Most torts in our law are not made out without proof of some damage but some, such as nuisance, trespass to land and libel, are actionable per se. The noble and learned Lord, Lord Etherton, made some reference to this a few moments ago, which is to say: without the need to allege or prove any damage. Clause 4 is interesting because it specifically makes no mention of damages or financial compensation for the claimant. I think that is what the noble and learned Lord’s amendment, or part of it, is directed at.
Lord Sandhurst (Con)
My Lords, I speak to Amendments 49, 50 and 52, which are premised upon Clause 4 surviving—I start from there.
Amendment 49 would add some additional subsections to Clause 4. The effect of these would be to add employment tribunals to the definition of civil courts that can hear disputed issues. Proposed new subsection (5) would provide that, in addition, where there is a dismissal of an academic who is held to have been dismissed for exercising academic freedom, that will be automatically unfair, with the usual consequences.
Amendment 50 would introduce a procedure for staying claims so that, when one is brought, either party can apply for it to be stayed—particularly, one might think that the education provider would apply for it to be stayed—to go to mediation by the regulator in the way that employment tribunal proceedings are stayed to be mediated by ACAS.
Employment tribunals have these advantages: they are more informal, they are quicker and they are more accessible to those who wish to pursue a claim. Importantly, they operate within strict time limits. The sort of claims we are looking at here are claims for unfair dismissal or similar. In any event, they need disposing of without long delay; we do not want a six-year period in which someone can bring one of these claims. In the employment tribunal, by way of example, unfair dismissal claims must be brought within three months, less one day, of the effective date of termination. In a contract claim, it is three months from the date of breach. Although it is not in my amendment, it would follow, I would hope, that if the principle were adopted, the employment tribunal rules would be amended to ensure that similar provisions applied to such claims. In contrast, as I have already observed, a claim in tort has a six-year life before it is timed out.
The provision in Amendment 50 mirrors ACAS early conciliation and is similar also to provisions in Section 148 of the Pension Schemes Act 1993, under which either party can seek a stay to the Pensions Ombudsman. Whichever model we take—I leave it to the Government to consider the precise wording, but the idea is clear—there should be a reference to the Office for Students, so that the matter has every chance of being disposed of and resolved there by the regulator.
In short, these proposals would encourage settlement. They address many of the arguments raised against the statutory tort. It would certainly be simpler and quicker if it was dealt with in the employment tribunal, and there would therefore be the great benefit of dispatch. There is every hope that, using this combined process, a stay would be ordered and the case resolved swiftly, cheaply and sensibly. In other words, it would bring accessibility, speed and efficiency.
Finally, the introduction of proposed new subsection (5), in addition to the statutory tort, as I explained, would make it plain that where a member of academic staff has been dismissed and the tribunal hearing it finds that this has been for rightfully exercising his or her academic freedom, it should be deemed to be automatically unfair.
Amendment 52 would make a series of technical amendments to ensure that the rights apply effectively to the range of persons whom it is intended may avail themselves of the tort. It therefore removes the requirement for a two-year qualifying period for which employees would normally have to qualify to claim for unfair dismissal. It removes any cap on compensation and it provides for access to interim relief, in special cases, for re-engagement pending a final hearing—this is for dismissal cases. This would give an academic, or someone in an academic post who has not been there for two years but has been dismissed for exercising freedom, equivalent protection to that given to whistleblowers.
I conclude by saying that these amendments would provide strong protection of the sort I believe the Government are really aiming at. It would marry the OfS scheme to that which already exists in ordinary employment tribunal cases and would enable matters to be disposed of efficiently and economically.
Lord Pannick (CB)
My Lords, I agree with the powerful speech of the noble Lord, Lord Grabiner, with the possible exception of his surprising suggestion that the introduction of lawyers is generally a mischief.
I will add a few words on why Clause 4, in my view, should be removed. The duties under the legislation—it is a very sensitive area—should be regulated and enforced by a statutory regulator. The regulator should have sufficient power to resolve disputes and to give a declaration or a statement which will set standards which will then inform all relevant persons of what the requirements are in this context. That will be speedier than civil litigation; it will be less expensive than civil litigation; and it is highly likely to produce a more acceptable result than civil litigation. Despite their many skills, His Majesty’s judiciary is not the best body to determine these sensitive issues. A regulator will have far greater expertise and is far more likely to produce an acceptable result.
I am not persuaded by the views attributed by the noble Lord, Lord Grabiner, to the noble and learned Lord, Lord Hope, as to why Clause 4 is otiose because it will be the law in any event. I have two answers to the concerns of the noble and learned Lord, Lord Hope. The first is that Article 6 of the human rights convention would be satisfied by the ability of someone dissatisfied with a regulator’s decision to bring a judicial review. That would meet Article 6 concerns. Of course, that would have very considerable controls: any person seeking judicial review has to get the permission of the court to bring the claim. They have to bring the claim within a very short period of time—three months, unless there are exceptional circumstances—and judicial review would be available.
The other point that I understand the noble and learned Lord, Lord Hope, to be concerned about is that there is a right to a civil claim whether or not a statute says so. My understanding is that when the court assesses whether a statute confers a right to damages for a breach of the statutory duty, the court asks itself the questions: “What did Parliament intend?” and “Did it intend in this statute, in all the circumstances, to confer a right to damages?” If Parliament were to remove Clause 4 and there were to be an effective regulator with a right to bring judicial review, I would have thought that more than sufficient to rebut the suggestion that you can go to court and seek damages in any event.
Lord Willetts (Con)
My Lords, I hesitate to intervene in this debate as I am not a lawyer. We have heard four very powerful interventions from Members of this House with formidable legal expertise. Already, Clause 4 is looking rather vulnerable in light of the arguments that they have deployed so powerfully with their legal expertise. The noble Lord, Lord Stevens, who sadly cannot be with us today, and other noble Members of this House—including me—signalled our intention to oppose the question that Clause 4 stand part of the Bill. Our doubts are reinforced by the formidable interventions we have already heard.
Perhaps I could add, as someone with an interest in public policy in this area, an explanation of where we are coming from. To be fair to the Minister, the case for this Bill is that it backs up the general right to freedom of speech with an attempt to provide more enforceable rights and compensations. The question is whether this provision of a statutory entitlement to tort helps serve that cause at all or whether the Government can achieve their objectives without this new route of civil litigation. The risks are considerable, including, clearly, of promoting vexatious litigation.
There is another significant risk that has not been mentioned so far. For those of us who want to see free and lively exchange of conflicting ideas in higher education—I hope we all do, on all sides of the House—there is a danger that that this type of provision has an opposite effect from the one intended, in that people who are thinking of potentially inviting speakers or organising events at their university are inhibited from doing so for fear that they could potentially find themselves caught up in complicated and demanding legal action; in other words, this could have exactly the opposite effect to the one intended.
I hope that the Minister will also be able to explain to the House why he does not believe that the current arrangements and other arrangements set out in the Bill will not themselves tackle the problem that he is concerned about. Will he accept that with the Office of the Independent Adjudicator there is already a clear process whereby any student who has a concern about the way their university is functioning, including potentially suppressing their freedom of speech, has a right to go to the Office of the Independent Adjudicator, and, beyond that, that ultimately those decisions are of course justiciable? Does the Minister also accept the point that he himself made in earlier debates on this legislation, that there is a framework of employment law which provides protections for academic staff? Indeed, ironically, especially given the preoccupations of my side of this House with a liberal and lightly regulated labour market, one of the best protections we seem to have from the worst of American cancel culture is precisely that we have a stronger framework of employment rights in this area; they could be extended, and we have heard interesting suggestions on that.
If it is not the OIA or employment law, there is indeed the Office for Students. The Government clearly intend that the Office for Students should have new powers to investigate potential infringement of people’s rights to freedom of speech. Often, when we have been confronting other public ills for which we are trying to find a solution, we have turned to an effective regulator. We have already heard powerful interventions this afternoon about the need for an effective regulator in this space. When we have a regulator in place whose powers can be extended in the Bill and, as we have heard so powerfully this afternoon, very carefully defined and set out with greater rigour than we have had so far, it seems odd and completely unnecessary that we feel the need in parallel to create this new tort route as well despite that route being available.
Finally, I return to the dangers in this approach. We had the wonderful observation from the noble Lord, Lord Grabiner, that perhaps lawyers on all sides of the case would find that at least their income rose, and I guess that you can imagine a well-funded litigant and a well-funded university. However, students and student unions are not well funded. There would be a real risk for student unions, which have themselves faced increased legal responsibilities under this provision and would not have the resource to engage in defending themselves against litigation. They are an important place in which students with a wide range of political views have their first experience of organising debates, exchanging ideas and disputing. For the threat and shadow of potential litigation which could bankrupt their student union to hang over them is not a service to the cause of freedom of speech in our universities.
Lord Blunkett (Lab)
My Lords, I declare my registered interest in the universities sector. Like the noble Lord, Lord Willetts, I am not a lawyer, but I often find myself—this is an embarrassment for him—agreeing with every word he says. I commend the forensic contributions made by those who do have legal expertise, including my friend, as I think I can describe him, the noble Lord, Lord Grabiner.
We should take a step back and ask what we think we are doing with this legislation. Thank God we are not America. Thank God that, normally, we can sort things out without recourse to the law or to a regulator. Normally we can apply common sense, but let me clarify a case where common sense does not apply.
Let us call someone Kathleen. She must put up with the totally unacceptable behaviour of those extraneous to a university and of some colleagues inside it. She is not dismissed but is put in a position surely intolerable to all right-thinking people, except those who are fanatics for a particular cause and acclaim it as being all about equality and justice, only then to deliver the exact opposite. In this case, would she be entitled to claim constructive dismissal? If she would, there is a remedy already in the system. I take the point about the amendments to do with the employment tribunal system: you cannot bring a case if you have not been employed for two years. Let us say, however, that Kathleen has been employed for 16 or 20 years. Would she succeed in a claim for constructive dismissal in these circumstances? If she would, there is no cause for increased nightmarish leviathan legal structures. If she would not, this clause and the Bill do not assist her.
We have the OIA and the Office for Students. Now, under civil law, we want this engagement of tort to deliver something that either can be delivered under existing legal structures, or cannot be and which the Bill does not deal with either. It is a nonsense. The whole Bill is a nonsense. There are other ways of going about this in a civilised democratic society, for people to stand up to those who intimidate or to what might be described as cancel culture. It is time for people with a commitment to democracy and freedom to do that, rather than rely on regulators or the law.
I speak from experience. When, as Secretary of State for Education and Employment, I introduced the first tranche of fees in higher education, I was driven out of university premises. We just met outside them. We continued to have those meetings and that dialogue, irrespective of those trying to shut down free speech. Therefore, I have had a bit of it, though nothing like the example of someone we might call Kathleen, which sees people’s lives destroyed. We need a society that stands up for what is right and not a Bill that will cause even more confusion, difficulty and regulatory nightmares. On Report, we should eliminate this clause—and, in the end, we should eliminate the Bill.
Lord Macdonald of River Glaven (CB)
My Lords, I strongly sympathise with the Government’s intention in pressing Clause 4, which is precisely to protect people such as Kathleen Stock. That is its purpose but it goes about it in the wrong way. Speaking as a former academic administrator, I see two particular problems, both of which have been alluded to briefly in this debate.
The first is vexatious litigation. Whenever a free speech row arises in a university, pressure groups are not slow to get involved. Some come from a standpoint of complete integrity and their interventions are helpful. Others are more politically motivated and, as I have seen frequently, in the fight to cause mischief. Some of these pressure groups are very well funded. Some are religious organisations, some political organisations. I fear that one result of this clause, were the Bill to become law, would be to place a significant burden on universities in fighting off vexatious claims. That is highly undesirable.
This leads to the second real problem with the clause. In reality, far from encouraging free speech, which I am certain is its intention, it will have the opposite effect, as the noble Lord, Lord Willetts, said. Universities, unions and university societies will fear the heavy hand of litigation and the effect will be a chilling one. Universities will be less likely to host controversial, vibrant events if a tort of this sort is pressed by this Parliament, than they would be if no such action is taken. I strongly oppose this clause for those two reasons—and others, but for those two in particular: vexatious litigation and the clause’s chilling effect on vibrant debate in our universities.
Lord Cormack (Con)
My Lords, I shall speak briefly in following the noble Lord, Lord Macdonald of River Glaven. I very much agree with what he and others have said. We have heard a great deal of common sense. I am sorry I was not able to take part in the earlier Committee debates in the Moses Room, but I was taking part in the Northern Ireland Protocol Bill, which was going on at the same time in the Chamber. I spoke at Second Reading, however, so I hope your Lordships do not mind my speaking now.
A very wise man once said to me, shortly after I was elected to the other place in 1970, “The first thing you should always ask yourself, when the Government of the day present legislation, is, ‘Is it necessary?’ Look at the statute books and see whether there is another way of dealing with the matter, rather than cluttering up those statute books with further unnecessary legislation.”
Literally thousands of pieces of legislation went through Parliament during the long, illustrious reign of Her late Majesty Queen Elizabeth. Many have never been used and others were indeed otiose. We have had a master class this afternoon from the noble Lord, Lord Grabiner. He must not apologise for speaking at some length; it was a treat to hear him and he said some extremely wise things. Just because there is a problem with free speech—and there is—the answer is not necessarily new legislation. I believe we should look at this extremely carefully, as we conclude Committee and move towards Report.
We want a slimmed-down, not fattened-up, statute book. I very much agree not only with what the noble Lord, Lord Grabiner, and my noble friend Lord Willetts said about Clause 4, but with the noble Lord, Lord Blunkett, in questioning the need for this. If the Bill is to go through, it must certainly be a slimmed-down version.
Lord Johnson of Marylebone (Con)
My Lords, I rise to support my noble friend Lord Willetts, who seeks to prevent the creation of a new statutory tort. We have heard a couple of criticisms of the tort that are a little inconsistent. We heard that it will, on the one hand, lead to a flood of vexatious claims that will bog up our legal system and be very costly for our universities; and, on the other, that it is otiose, because the right for people to make claims to the courts already exists. It surely cannot be both at once.
My objection to Clause 4 is that I think it will undermine the regulator, the Office for Students. I speak not as a lawyer or an expert jurist, so I enter into this terrain with great trepidation. From a very practical point of view, my concern is for the work of the director for free speech and the authority of the Office for Students if we put this new statutory tort into law.
Having been involved in helping to set up the Office for Students through the Higher Education and Research Act with my noble friend Lord Younger, I am acutely aware that we have already created a very powerful regulator. The reporting structure that this Bill creates around the director for freedom of speech is none the less extremely useful. That is why I support this aspect of the Bill, which creates this new position in the leadership team of the Office for Students.
However, once the director for freedom of speech’s position is created, his or her position will be very strong and he or she will have sufficient powers to do the job that we expect him or her to do in promoting freedom of speech in our system. That is because the director for freedom of speech will be able to impose conditions of registration on any provider that falls short of the enhanced duties created by this Bill.
These conditions of registration are an extremely powerful regulatory tool, because they consist of far more than just the nuclear option that HEFCE used to have, which was just to withhold funding from a provider. The Office for Students has a very subtle suite of regulatory tools at its disposal. They run a full range from simply seeking an action plan from a university all the way through to imposing fines on an institution if it does not deliver on the action plan it has agreed with the director for freedom of speech. They do not need to consist simply of suspending a provider from the register and therefore effectively dooming it to failure, or taking away its university title. Those are nuclear options that no regulator really has any credibility in threatening, but the director for freedom of speech will have many other more useful tools at his or her disposal.
A statutory tort on the statute book will not help the regulator in any way at all; it already has the tools it needs. I strongly support my noble friend Lord Willetts. I hope the Government will listen to the debate and the excellent interventions that we have heard this afternoon and accept Clause 4’s removal from the Bill.
Lord Triesman (Lab)
My Lords, it is a pleasure to follow the noble Lord, Lord Johnson. Like so many other people in the debate, I strongly agree with the comments made, from the speech by the noble Lord, Lord Grabiner, onwards. I also do not believe that this clause should remain. I do not believe it will do the job it is supposed to, and it will almost inevitably lead to the chilling effect that the noble Lord, Lord Willetts, and others have described.
My noble friend Lord Blunkett asked why the not entirely fictitious person Kathleen could not pursue an action for unfair dismissal because she was compelled into a position that was intolerable. I believe that there was a time when she would have been advised to do that, would probably have done so, and could have counted on the support of her trade union in pursuing that course of action—I can say this directly, as my interest has been declared any number of times. Of course, she found that she could not count on the support of her trade union. I submit to your Lordships that one of the reasons she could not now count on its support is precisely the reason that my noble friend described. If you go back seven, eight, certainly 10 years, the battle that would have taken place in that union to make sure that someone’s employment rights had been sustained without having to resort to any other regulator or court would have been absolute. It would have been the determined position of that union. Some may say that if that would no longer happen, maybe we need something else.
I submit that the “something else” we need is certainly not Clause 4 and this tort. There are those who might say that they are not so concerned about the chilling effect because they do not believe that enough of these things will happen. I say to your Lordships’ Committee that if it wanted to hand-pick a group of its fellow citizens who would argue in the most tortured way about absolutely anything, it should go to one of our universities. There they are: serried ranks of people whose day-by-day enjoyment is to have furious arguments about matters of little consequence. [Interruption.] I have been one for many years.
I will tell the noble Baroness, Lady Smith, that at Cambridge University, after the faculty of economics was redecorated, I was inveigled into taking part in a debate as to the order in which the portraits of its Nobel prize winners should be rehung and whether it should be Marshall or Keynes in the pre-eminent position. I left that debate after eight hours. No one was an inch further down the line of resolving it and, to my knowledge, the portraits have never been hung, because 20 years later no one is any further down the path of resolving it. I hate to say this: the only place where I have seen disputes followed with the same tenacious interest and complete unwillingness to give an inch is in my synagogue, but that is because it largely comprises lawyers. I do not make this point to be frivolous or humorous. The truth is that this is a most vexatious and disputatious group of people. They are employed to have arguments with each other; it reaches into every corner of their lives. If we think that they are unlikely to do so in these circumstances, we mislead ourselves completely.
Some people will be very well backed in pursuing this course of action. I think the noble Lord, Lord Willetts, made the point that some will be at a great disadvantage financially. The student unions that we are talking about are usually run by a small group of young people with no experience whatever of the law. Generally speaking, they are unable to exert any control over all the clubs that form the diaspora of their organisation—the Minister made that point. They will be put in a position that they cannot afford or control, and to which there will be no satisfactory long-term resolution.
All this brings me to say that the points that have been made, including by the noble Lord, Lord Johnson, about having a regulator that can manage these things, and build on knowledge of how to manage them, is a route to a sensible solution. The rest of it—and I apologise if this is thought to be offensive; I do not mean it to be—is completely fanciful, and anybody who has spent more than a few weeks working in a university will know it.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have a huge amount of sympathy with the fears about the chilling effect of Clause 4 and the points that the noble Lord, Lord Willetts, started off making. Basically, I am torn on Clause 4; I do not quite know where to go.
A number of people have discussed the potential of vexatious litigation. I think that is rather cynical. We keep hearing about all these bad-faith players. I am simply worried about litigiousness full stop, even by good-faith players. We know that a dependence on law courts to resolve problems can tangle us up and subsume the matter of fighting for freedom and free speech in legalese, lawyers and so forth, even if done with the best of intentions.
In other words, I do not want us to abandon what we all started off agreeing, which was that this Bill should not compensate for a need for a culture change in relation to arguing for the importance of academic freedom. It should not be seen as a replacement for that. I definitely do not want the law courts to get in the way, because they can kill off any possibility of that culture of the spirit of freedom being drowned out. That is one side of it.
The Duke of Wellington (CB)
My Lords, I first declare my interest as a former chairman of King’s College London. In that position I was a layman, not an academic—we have had a number of very informed academic contributions—and I am certainly not a lawyer. I regret that I was not able to be present for Second Reading; I hope noble Lords will forgive me for intervening at this stage.
I am very surprised that the Government have sought to introduce this Bill at all, and certainly Clause 4. I have not yet detected a single Member of this House who is seeking to defend Clause 4 as currently drafted; every contribution has wished either to delete or amend it. The noble Lord, Lord Johnson, is in his place. He introduced the higher education Act a few years ago when he was Minister for Universities. I admit that I opposed many aspects of that Act. Indeed, the noble Lord, Lord Johnson, himself described it this afternoon as having introduced a very powerful regulator in the Office for Students; I would say that it is too powerful already.
However, we do have the Office for Students, and I really cannot understand the justification for putting into the Bill a statutory tort as well as the existing arrangements we have for the regulation of universities. On the whole, universities are surely one of the sectors of this country that have performed outstandingly well over many, many years. We have some of the leading universities in the world. We are recognised as being in that position; our universities are admired. Rather like the noble Lord, Lord Blunkett, I think I am opposed to the whole Bill; but I am most definitely opposed to Clause 4.
We all have such respect for the noble Earl, Lord Howe, and I do hope that Ministers will seriously consider withdrawing Clause 4 as currently drafted. If it is still in the Bill when we reach Report, I shall certainly oppose it—as, I believe, will many other noble Lords.
Baroness Chakrabarti (Lab)
My Lords, it is a privilege to follow so many contributions from noble and learned Lords across the House. I declare my interests, first as a lawyer—unashamedly; we need to be loud and proud in these difficult times when we are so denigrated—but also my academic interests as listed in the register.
Like other noble Lords, I would prefer not to have the Bill at all, but this is not a Second Reading moment. It is a combination of virtue signalling on the one hand and “something must be done”, in the context of very difficult times culturally, with a polarised society, intergenerational disputes and so on. However, in a Bill that is not great, Clause 4 is the worst part.
Against myself, I would rather go back to a halcyon age where universities were largely self-regulating, as I think it was a rather good way of preserving their academic and free speech independence; but perhaps I am a dinosaur to think that universities could be self-regulating. I do understand that, when a lot of public money is being spent on universities, people will be concerned that they should not be totally self-regulating—and they are not, in existing law. But Clause 4 is problematic for a number of reasons that have been well drawn out—and not just by the lawyers, I might add; some of my asterisked and underlining notes are from the contributions of non-lawyers with practical experience of the academy.
To get into the “otiosity”—if that is a word—dispute between the noble Lord. Lord Pannick, and the noble and learned Lord, Lord Hope, I am probably, not for the first time, with the noble Lord, Lord Pannick. If Clause 4 were removed—incidentally, what is it about fourth clauses? I am glad that my noble friends on this side are giggling at that and are not upset. My reading of the Bill if it existed without Clause 4 is that it would give some further definition to the rights that already exist under Article 10 of the ECHR, which deals with free speech, and the duties placed upon public authorities to respect that duty in relation to those who would otherwise be deprived of their free speech rights in a university.
The noble Lord, Lord Johnson of Marylebone, made an important point: it is one thing to say that a university regulator that already exists and has all sorts of duties relating to this publicly financed space will take on extra responsibilities and concerns around guaranteeing free speech, but another thing to have, alongside all that architecture, a new statutory tort that brings financial compensation into it. Those things stand in tension, which is why I also have sympathy with the noble Lords, including the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Sandhurst, who said, “Let’s at least try to define this new Clause 4 duty or look at what it is we want to achieve by it.”
My own understanding is that courts and employment tribunals should already be ensuring that people’s free speech is protected in the context of their employment and appointment rights. If that is in doubt, so be it: provide for that in the employment law system, the appointments system and the regulatory system. But to create a free-standing and wide-ranging tort, which by definition would bring financial compensation in a context where civil legal aid is virtually dead in our jurisdiction, is an invitation to think tanks and NGOs, including international ones, to do what some people call making mischief—although, as a lifelong mischief-maker myself, I perhaps should not bang on about that too much.
Clause 4 will do the opposite of what is intended. What I believe to be intended is that we should once again be encouraging the clash of ideas, even when they are uncomfortable—even, occasionally, when they are offensive—in the academic space. To hand the right to litigate to people who should be debating, not litigating, is by definition to be handing it to some and not others. I have no doubt that that will have the opposite effect from what is intended.
The noble Baroness, Lady Fox, said, “Will it be just about financial loss or should it be about other kinds of loss as well?” One needs to be very careful about that in the context of free speech. I have been called a bigot. I do not think I am a bigot and it is not nice to be called one, but if people want to call me a bigot, they need to be able to challenge me on my prejudices, including in the academic space—and including in this Committee, where we are protected. Our free speech is protected in this place more than most people’s in the country and around the world, and we should be careful about imposing new duties and obligations that bring litigation in the name of free speech.
I have concerns about it still, but if this Bill must pass, let it be about regulating universities and empowering them to do better in the difficult navigation exercise that they have. Let it not be a recipe for more litigation, under a Government who are always saying that we have too many “activist lawyers” and human rights lawyers—do not get me started as this is the language of the current Home Secretary and former Attorney-General. What a contradiction it is to say, “There is too much activist litigation” and then to design a recipe for more and more of the same.
Lord Pannick (CB)
I hope the Committee will accept my apologies for failing to mention my interest as a member of the governing body of All Souls College, Oxford. It is an unusual college as we have no students, but we are not immune from the problems the noble Lord, Lord Triesman, mentioned earlier.
Baroness Falkner of Margravine (CB)
My Lords, I intend to intervene very briefly. I declare an interest as chair of the Equality and Human Rights Commission. The EHRC generally supports this clause so perhaps I need to add a caveat that I am not taking its advice but speaking in a personal capacity on this issue—perhaps “hybrid” is the best way to describe it, because I will lean on some of its arguments.
I broadly support the Bill. The importance of this clause is less to do with freedom of speech for individuals or visitors, and more to do with academic freedom. Academic freedom is profoundly important in terms of this clause. In the cases that have been mentioned, particularly on previous days in Committee, people have suffered real loss. At the commission, we carried out a very discreet and small piece of work—which is why it is not published yet—in a niche attempt to get under the skin of what was happening to academics in the daily course of their work in terms of a chilling effect and being able to express academic freedom. It was a small piece of work; nevertheless, we found clear evidence of a chilling effect in universities. This could extend to promotions or publications—it is very hard to get certain opinions published—or simply being welcome or having collegiate support in your faculty. There is a problem with the freedom of academics to research and publish what they do in certain areas that refer to some of the cases that have been mentioned here. I do not think the clause is designed to penalise those who offend who are just visiting speakers. It is much more about the people who have to do this day in, day out.
I want to address some points made by noble Lords. The reason this Bill is here is because we know that the Office for Students has been found wanting. The Office for Students has not been able to do what it should be doing, which is why we have the number of cases that have come to the courts. They have not come to the courts under employment law. They have had to come by different routes to get there because the Office for Students perhaps does not have the right powers. I do not wish to criticise another regulator, but perhaps it does not have the powers and that is why we are debating this Bill.
The noble Lord, Lord Grabiner, made a very powerful speech and I am convinced by a lot of what he said, which is why I am not in full enthusiasm supporting this clause. I will wait until Report for that. He made an important point that individuals, on the whole, do not have the resources to go to court. I think this point was picked up by other noble Lords as well. Welcome to the world of crowdfunding: anybody who has a gripe these days can crowdfund and will find somebody who is prepared to dip into their pocket to pursue that litigation. A lot of regulators and smaller bodies which are not fabulously well funded, as well as individuals, are having to face this blight of non-expert people reading an article in a paper, feeling outraged and getting on to PayPal and sending money. Charities know all about that. I do not support the clause but, on litigation, there are people who are endlessly willing to go to court, so I do not see this as a particular deterrent.
I will ask the Minister two questions. The first is on academics who come under extreme pressure in their departments, as was the case with Professor Stock, who has been mentioned. In order to resolve the situation, they are perhaps pressurised to agree—or perhaps they willingly agree, but at a time of huge distress—a departure with the institution. I do not know the detail of Professor Stock’s case, but that is sometimes done through confidentiality agreements and sometimes through non-disclosure agreements. The Strasbourg court has in some cases overridden those on the basis of Article 10, but in other cases it has not. Therefore, there is ambiguity in the defence of Article 10 rights when you have had to sign a non-disclosure agreement with an institution in haste at a time of great emotional distress: later on, you do not know whether you can get those rights upheld.
Finally—here I address the Minister directly—Section 43 of the Education (No. 2) Act 1986 created a legal duty for higher education providers to take “reasonably practicable” steps to ensure freedom of speech within their institutions. There has also been subsequent legislation, the last being as recent as 2017. Would not those protections be adequate if Clause 4 were not to stand part? If they are not adequate, the Committee needs the Minister to explain why, because we return to this issue every few years. I am rather swayed by the very knowledgeable opinions expressed today urging the Government to be cautious in this regard, although we generally support the Bill.
Baroness Smith of Newnham (LD)
My Lords, we on these Benches share the view that we do not need the Bill, as held by the noble Lord, Lord Blunkett, the noble Baroness, Lady Chakrabarti, and, I believe, the noble Duke, the Duke of Wellington—I apologise if I have taken his name in vain.
In order not to engage in Second Reading again, I will start with the point from the noble Lord, Lord Cormack: with any piece of legislation, ask yourself whether it is necessary. There seems to be a strong sense that there are serious questions about Clause 4 among all speakers across your Lordships’ House, from noble and learned Lords to academics to retired politicians—or rather retired MPs: people in your Lordships’ House may or may not think of themselves as politicians; on the Cross Benches they probably do not, but on some other Benches “retired MPs” may be the appropriate phrase. But there is almost unanimity across your Lordships’ House in opposition to Clause 4, or at least in doubt about it. The only Member who seemed keen to try to support Clause 4 was the noble Baroness, Lady Fox, but she did not seem to have been quite persuaded by it. Could the Minister be persuaded to think again? As noble Lords, particularly the noble Lord, Lord Grabiner, have eloquently pointed out, this clause is not fit for purpose or desirable.
It is not clear that the clause will even work in its own terms. The noble Lord, Lord Triesman, sought to point out that academics are particularly mischievous and that they can debate until the cows come home. However, whether you hang a portrait or how you design your gardens in an Oxbridge college are not things that we would normally take to litigation. That might be the sort of activity that engages academics, but this debate is much more profound. Here I declare my interest as a Cambridge academic; I declared it at the start of Committee stage, but I reiterate it on the record as we are currently in the main Chamber. What we are talking about here is not the sort of debate that people might have over dinner, or in the Oxford Union or the Cambridge Union; these debates are about very serious issues of freedom of speech. Yet it is not clear how Clause 4 will, in any way, strengthen freedom of speech, because, as we have heard from several noble Lords—in particular, the noble Lord, Lord Willetts—there is a danger of a chilling effect. The Government have not adequately thought this through, including the law of unintended consequences. Already, with something like the Prevent requirements, academics or students considering whether they will invite people to speak will think, “Is it worth the effort? Is it worth going through all these procedures to invite a controversial speaker?” Very often, the answer will be no. Bringing in the civil tort will only make that danger even more severe.
Yes, we need a way of ensuring that free speech can be guaranteed, but as the noble Lord, Lord Johnson of Marylebone, suggested, surely that is the job for the regulator. Trying to bring in lawyers is a recipe for even more hours of debate than an economics faculty or the synagogue of the noble Lord, Lord Triesman, might engage in. It will be costly, but will it benefit anybody apart from the pockets of the lawyers? It is not clear that it will.
This clause seems to be deeply unwelcome, and it is unclear that it is necessary. Can the Government think again and consider removing it by Report stage?
Lord Collins of Highbury (Lab)
My Lords, I start by saying that this has been an excellent debate. One of the excellent things about this House is that the debate has not been partisan at all—and certainly my contribution this afternoon will not be partisan.
I will share some thoughts about lawyers and courts. As a lifelong trade unionist, I have of course tried to resist courts intervening in industrial relations. This is for good reason, because when Governments have tried to use courts in industrial relations, it often ends in failure. The biggest change over the years—certainly in my experience—has come from the adoption of best practice, codes of practice and the introduction of a regulator. That has resulted in far more progressive and better change than when the courts were used as a weapon. I think that this clause is exactly about that.
The noble Lord, Lord Johnson, is quite right. Whatever we think about whether this provision will resolve some of those vitally important issues, the fact is that we have a well-established regulator, and this Bill proposes to strengthen that regulator. As I was listening to the debate, I thought about the one that we had on the Trade Union Bill. The Government at that time, when highlighting the problems in industrial relations, decided that the main focus—although I opposed that Bill at the time—should be on how we strengthened the regulator. Certainly, in terms of the certification officer, those powers were strengthened.
It is a fundamental question. If the Bill has a purpose, it is about change, and its main focus has been on how we make the regulator more effective. What the debate has clearly established is that this clause will have the opposite effect: it undermines the regulator and the changes that we are trying to make. The words that kept coming to my mind in Committee and at Second Reading are those of the Minister, who said that the provisions of Clause 4 were a backstop. I fear that it will be the first step and will result in very well-funded litigation, not to put right a wrong, change a practice or improve the situation, but simply to have a go and make a point. We call it “vexatious”, but that is the climate that we are in danger of empowering, if we are not careful.
Earl Howe (Con)
My Lords, as noble Lords have indicated, today and at Second Reading, the issue of the proposed new tort is one that has given rise to a number of doubts, questions and worries, which I shall do my best to address. Whether I can entirely assuage those concerns remains to be seen, but I hope that noble Lords find what I say to be helpful at this stage.
Amendment 48 from the noble and learned Lord, Lord Etherton, seeks to make it clear in the Bill that a claim under the tort against a higher education provider or college can be brought only by the individuals specified under new Section A1(2), namely those whose freedom of speech is protected under the Bill. The amendment would also make it clear that such a person must have suffered loss in order to bring a claim. I can confirm without hesitation—and I hope that it is helpful for me to place on the record—that we intend for the new statutory tort to operate as the amendment suggests, which is the usual approach under tort law. This is reflected in the Explanatory Notes.
For someone to make a successful claim via the tort against a provider, the claimant would need to be able to show that the provider owed them a duty of care. Only the class of individuals specified in new Section A1(2) would be able to demonstrate that the provider owed them a duty of care. This is not a question of demonstrating standing to bring a claim, rather a question of demonstrating that they were owed a duty of care—a more limited group that would not, incidentally, include pressure groups.
As for the need to demonstrate that they have suffered loss, the claimant would need to point to a genuine loss that they had suffered as a result of the breach of the freedom of speech duties in new Section A1 in order to claim damages. If we bear in mind that only a person specified in new Section A1(2) could bring a claim, we consider that they would do so only if they have suffered because of a breach of the duties—even if, for example, that loss is injury to feelings and not a monetary loss. I come back to the point I have made before, which may be helpful to the noble Baroness, Lady Fox: we intend the tort to be a backstop, particularly for those situations where an individual disagrees with a recommendation that has been made.
I understand the concern of the noble Lord, Lord Grabiner, that Clause 4 should specify that compensation can be awarded by the courts. There are, as he rightly said, some statutory torts where it specifies this but also torts that do not: for example, Section 138D(2) of the Financial Services and Markets Act 2000. The principal remedy for tort is damages, although, as the noble Lord will know, an injunction and other remedies may also be available. An injunction, for example, could require that a student is readmitted on the course which a provider has removed them from, so we would certainly want a court to be able to order that, if appropriate.
The remedies available for the tort of breach of statutory duty are the same as for tort generally, subject to the intention of the relevant statute. Where the legislation itself provides a remedy, the question may arise whether it is tended to be additional to the general remedies available under the law or instead of them. Where the legislation provides a remedy but there is no express or implied indication as to whether other remedies are also available, there is a prima facie presumption that it is intended to be the only one available. This presumption will not always exist and the question depends in each case on the construction of the enactment concerned. Given this, we think that it is not necessary to specify that compensation is available; it could, in fact, unintentionally limit the court’s powers.
Amendments 49 and 52, tabled by my noble friend Lord Sandhurst, seek to allow the employment tribunal to determine claims brought by academic staff members under the new statutory tort and to make dismissal for exercise of academic freedom automatically unfair. The consequential amendment removes the qualifying period for unfairly dismissed academics and the cap on the compensatory award, and it allows the tribunal to order interim relief. The Bill does not prevent academic staff bringing claims before the employment tribunal, which may take into account a breach of the freedom of speech and academic freedom duties, if it is relevant to a claim before it. Under the current employment law framework, the two-year qualifying period for unfair dismissal is intended to strike the right balance between fairness for employees and flexibility for employers, to ensure that employers are not discouraged from taking on new staff. Where an employee does not have two years’ service, it is still possible to bring a claim for wrongful dismissal in the civil courts.
In answer to the noble Baroness, Lady Falkner, in particular, the Bill in fact broadens the range of people covered by the existing freedom of speech duties to ensure that all staff within a provider, college or students’ union have protections and can seek redress where duties are breached. The new duties give particular protection to academic staff, including those who may not have employee status or have been employed for less than two years. It therefore broadens the scope of the current provision to ensure that visiting fellows, for example, have the freedom to research and teach on issues that may be controversial or challenging without the risk of losing their post, privileges or prospects.
The Bill gives specific jurisdiction to the courts to consider claims for breach of a statutory duty, as well as setting up a new complaints scheme. I say to my noble friend Lord Willetts that we think that this is a proportionate approach. Academic and non-academic staff will have sufficient routes for redress, without the need to amend employment law as proposed.
Amendment 50, also tabled by my noble friend Lord Sandhurst seeks to make clear in the Bill that the tort should be only a remedy of last resort and that individuals should first exhaust the free route of redress of the Office for Students complaints scheme. Under the amendment, the court would be able to stay the claim on the application of the defendant. We expect that most complainants will choose to use the complaint scheme of the OfS—or students may wish to go to the Office of the Independent Adjudicator for Higher Education—before considering going to court, as no costs are involved in lodging a complaint.
The noble Lord, Lord Grabiner, spoke of mischief-makers. We consider that the tort is unlikely to lead to higher education providers, colleges and student unions having to deal with a large number of unmeritorious claims. A claimant would need to be able to show that the defendant owed them a duty of care, and they would need to point to a genuine loss that they had suffered as a result of a breach of the freedom of speech duties, as I described. In the case of an unmeritorious claim, the claimant would struggle to make their case. In addition, an unmeritorious claimant would risk having to pay substantial legal costs as a result, not only their own but potentially also the legal costs of the defendant. This, together with the availability of free routes for seeking redress, means that we expect the tort will likely be used only as a backstop.
Lord Grabiner (CB)
Does the Minister think it appropriate that there should be left in place two possible routes for a complainant—a regulatory route and a Clause 4 route—without there being any guidance whatever in the legislation as to who should or should not go first? At the moment, the Minister is saying, by way of assertion without a scrap of evidence to support it, if I may respectfully say so, that the expectation is that people will use the regulatory procedure first if they are going to make a complaint. At the moment, the legislation does not cater for that problem. Is he satisfied with that?
Earl Howe (Con)
My Lords, I hope the noble Lord will accept from me that I am not impervious to the points made by noble Lords from around the Committee on that issue, including the very powerful points that the noble Lord himself made. I will come in a minute to the position I have reached as a result of this debate.
It may be helpful if I just explain first, though, that we should note that, to complain to the OIA, the complainant must generally have first exhausted the provider’s internal complaints process; the same is likely to be the case for the OfS scheme. We anticipate that, in any event, where an alternative dispute resolution procedure is available, the court will be slow to engage with issues arising from the same subject matter, unless and until that procedure has been given reasonable time and opportunity to run to a conclusion. If an individual wishes to bring a tort claim before then, they should provide the court with good reasons for doing so, but that will be a matter for the courts to determine.
However, I have heard the concerns expressed by noble Lords, as well as in the other place, about exhausting other remedies and about the tort generally. We take these concerns seriously and will consider carefully whether anything can be done to address them. I am also happy to discuss the issue of who can bring a claim with the noble and learned Lord, Lord Etherton, if he still considers an amendment along the lines of his amendment necessary.
Lord Grabiner (CB)
I apologise: it is probably my fault because I did not convey the point of the noble and learned Lord, Lord Hope, as clearly as I could, and perhaps should, have done, and certainly not as clearly as he inevitably would have. It is not about the earlier 1980s legislation; the fact is that the Bill, if it becomes law, will contain brand-new statutory duties. It is those duties that, if broken, would give rise to the course of action we are talking about.
Earl Howe (Con)
I am grateful to the noble Lord. I shall reflect on that point and write to him, if he will allow me to clarify the Government’s position in that way.
I have already set out how we envisage the tort will operate, so I will not repeat that. Suffice to say that, in the view of the Government, the statutory tort will provide an important legal backstop by giving individuals a specific right to bring a claim before the courts. This could include a number of people in different situations. For example, and purely by way of example, it could include students expelled from their course because of their views; organisers of an event that is cancelled, having incurred costs in the process; and a visiting speaker disinvited at the last minute, with the accompanying media furore and perhaps damage to feelings and reputation. There are other instances I could give. Noble Lords who wish to remove this clause need to be comfortable about removing a backstop provision that could offer a remedial route to certain individuals, such as those I have mentioned.
I hope I have been able to set out why we believe that this clause fulfils a duty that we surely owe to those who believe that their legal rights in this area have been infringed.
Lord Collins of Highbury (Lab)
A number of noble Lords referred to the chilling effect and the Minister did not really cover that point. He keeps talking about this being a backstop, but if its effect is to prevent the invitations and stop the debate, what does he think about that chilling effect? It has completely the opposite effect to what he has been speaking about.
Earl Howe (Con)
The point the noble Lord, Lord Collins, makes goes hand in hand with the point that I would like to reflect upon. The issue raised by a number of noble Lords was the sequence of events: whether the Bill should make clearer that the complaints process should have first been exhausted before a recourse to the courts is made. So if I may I will consider the noble Lords “chilling effect” point in that context, as well as in the context of the overall clause, and write to noble Lords accordingly.
Lord Macdonald of River Glaven (CB)
My Lords, perhaps I might ask the Minister to consider this. He mentioned earlier in his remarks that the question of pressure groups was not really relevant because they would not be an entity to which a duty of care was owed. The problem with pressure groups is their willingness to fund litigation on the part of other people: I think that is the relevance. Would the Minister care to reflect on that?
Earl Howe (Con)
I take that point absolutely. I was not seeking to say that someone well funded by a pressure group could not, in certain circumstances, have recourse to the courts. It was simply a point made about pressure groups in themselves.
Lord Etherton (CB)
I am very grateful to the Minister for dealing with the range of issues that have arisen. So far as my own amendment is concerned—as I have made clear in the past—it is very poor drafting to leave out major provisions that should be going into the Bill and leave it to a statement of the Minister at the Dispatch Box or to be found in the course of reading the Explanatory Notes. I do think my amendment should be put into a proper form in the Bill itself, if necessary by a government amendment.
If, as I think the Minister referenced, it is envisaged that the courts will be able to give remedies other than compensation, again, that is a very important consideration. I would want to consider very carefully whether it is appropriate for the courts to have to find a suitable remedy other than damages in a particular case, so I would very much welcome an appropriate amendment that we could all see if this provision is to remain in the Bill. Subject to that—and I am very happy to have meetings with the Minister to discuss these matters—I beg leave to withdraw my amendment.
Lord Willetts
Member’s explanatory statement
The purpose of this amendment is to specify the route through which complaints must go, i.e., the OfS cannot intervene until a university’s own procedures, or those of the Office of the Independent Adjudicator, are exhausted.
Lord Willetts (Con)
My Lords, I will speak briefly to Amendments 58 and 59 in my name and that of the noble Lord, Lord Stevens of Birmingham.
In many ways these amendments follow on naturally from the debate which we have just held in this Committee. It has become very clear that one of the problems that we face is the lack in this legislation of any provision for a coherent complaints procedure which works step by step. A key issue, which will be of concern to many universities, student unions and other bodies, is whether they could find themselves simultaneously facing a civil litigation, an investigation by the Office for Students and a complaint to the Office of the Independent Adjudicator. It would seem extremely damaging and unproductive if all these different types of complaint, all envisaged in this legislation, could go on at the same time. So Amendment 58 is a simple attempt to provide at least an element of provision for sequencing rather than simultaneous investigation.
I realise that the Bill reflects a regrettable loss of confidence in universities as autonomous bodies able to run their own affairs and resolve their own disputes; we have had some vivid examples, for example from the noble Lord, Lord Triesman, opposite, of how those disputes are conducted. Amendment 58 says, “Let’s give universities the first chance to resolve these disputes before they’re then investigated by the Office for Students”. It is an attempt to provide universities with their first responsibility—although not to leave them on their own any longer, absolutely in recognition of the point that the Office for Students would then have the power to intervene.
That leads on to Amendment 59, which tries to specify that the Office for Students really ought not to investigate vexatious complaints. It seems rather absurd and odd that we have a provision at the moment which says that it may or may not investigate vexatious complaints. Why do we not just say that it should not investigate vexatious complaints?
I regard both these provisions as providing some reasonable clarity on the process that will help universities and student unions, while also offering some protection for the OfS itself. We heard, in a very important intervention from my noble friend Lord Johnson, who played a crucial role in the creation of the Office for Students, that of course it is a key regulatory body. The tenor of the arguments from all sides of the Chamber today has been that, if anything, we see an enhanced role for the Office for Students rather than more civil litigation. At least the OfS ought to be able to say to a potential complainant, “You first need to have gone through a process with your university”, and, “I’m terribly sorry; this is a vexatious complaint and we are not allowed to investigate such things”. That will also help provide some definition of the role of the OfS.
In the light of the interventions we have had this afternoon, particularly from noble and learned Lords, I realise that the definition of the role of the OfS in these circumstances needs to go much further. There is much more we must clarify, but I hope these two amendments at least start the process of bringing some necessary clarification.
Lord Sandhurst (Con)
My Lords, Amendment 60 follows on from what my noble friend Lord Willetts has said. We all seem to agree that we need a strong and effective regulator; that is absolutely at the bottom of this. My amendment makes absolutely clear the scope—or as lawyers say, the jurisdiction—of the regulator. It would prevent a subsequent challenge in court that the regulator did not have power to deal with this.
The amendment seeks to ensure that the OfS complaints scheme has a jurisdiction that is wider than the conventional ombudsman’s jurisdiction, which is simply to determine administrative fairness and reasonableness. It appears that the OfS complaints scheme is modelled closely on that of the Office of the Independent Adjudicator. That is pragmatic and sensible, and we know that scheme works. However, in two decisions—the case of Maxwell in 2011 and a decision in 2007—the Court of Appeal limited in an important respect the jurisdiction of the Office of the Independent Adjudicator and ruled that, acting as an ombudsman, it cannot adjudicate on legal rights and duties and that such matters are to be left to the courts.
We need an amendment to make it plain that the limitation the Court of Appeal introduced in the case of the OIA will not apply to the OfS. Otherwise, the director for freedom of speech and academic freedom will have very limited powers to address the substance of university free speech disputes, which will typically concern the right to free speech and this Bill’s statutory duties. This amendment would remove an unintended weakness and provide the regulator with the powers that I believe this House wishes it to have.
Lord Triesman (Lab)
My Lords, I rise to speak to my Amendment 62. I can help the Minister by saying that it is probably imperfect. That may save her a lot of time later, as she tries to dissect it to see how well it would or would not work. I have been doing my best to find something that might work, but I am painfully aware of its imperfections. Perhaps the best thing I can do is explain what I want it to achieve. I hope that the noble Lord, Lord Willetts, will not be upset by my saying that it follows his intentions as expressed in his amendment.
I am very grateful to the Minister, the noble Earl, Lord Howe, for saying that he will review Clause 4. A viable alternative, which is not unusual in other regulated bodies, is to say that every institution regulated by that body should be compelled to accept its rules. This is a body within higher education, in the same sense that the REF, other funding decisions and many other decisions have now been imported into the world of universities. Most of us would probably have preferred that they remain more independent, but I have accepted the argument that this is very difficult to sustain, given some of the things that have happened.
In this case, what I am trying to achieve is that every institution providing higher education be registered with a body and consequently accept its rules. As the noble Lord, Lord Johnson of Marylebone, said earlier, it was intended that the Office for Students be constructed to be authoritative and to provide appropriate guidance. However, it is not then for a university, a student union or anybody else who brings a complaint through this mechanism to say that they will not abide by the decision taken by an officer—they could be named almost anything—in the Office for Students with the responsibility for adjudicating these matters.
I am keen that it should be a named office. A great deal of knowledge will be developed around the culture of dealing with these things in a way that probably would not happen with successive judges in courts. It will develop a knowledge and be able to respond in a knowledgeable way, and within the overall culture. The determination of this officeholder would be binding on those who had submitted the complaint.
I recognise that it is very seldom the case that people will say that this should be a completely untrammelled power. Therefore, I have also tried to build in a means by which the decision can be looked at—in a way, like an appeal. But in either case, whether accepted at first hearing or having gone through a second hearing, it is the decision and the parties must abide by it. I recognise that this makes no allowance for financial penalties, and I have not written anything of that kind into the amendment. However, it might very well make decisions about how a university, individuals within it or people invited to take part in its affairs should conduct themselves and, if necessary, reinstate a debate which has been cancelled. There is a whole variety of things that it could do.
I want to create something of that kind because it will be authoritative, it will address a number of questions that the Bill is obviously intended to address, and it will be from within the culture of higher education, rather than imposed on it from somewhere else, which is never a good recipe in higher education. It is miles better if it is felt to be at least in some significant way part of the beast of higher education. There may be many better ways of formulating this, but that is the amendment’s aim. It does exactly what a number of noble Lords have said, which is to reinforce the regulatory system by making its determinations mandatory for all those who have joined the club of that regulatory system. No doubt it would in due course provide guidance. That would probably be very useful after the first cases have been heard and people have begun to ponder their import and what has been learned from them. It would probably provide good guidance. That is a structure which the best regulators achieve.
The old mechanism in the Cabinet Office to look at the validity of regulation specified a number of things. I will not go through them all, but it specified that the outcomes should be proportionate, intelligible, widely disseminated and understood more widely. We should expect all that as part of the outcome from proper regulation. Better regulation makes people feel they can live with a solution, rather than being ordered to do it in a court or some other place.
This amendment hangs together with the deliberations on Clause 4. I am ready to accept that it will need radical reworking. Helpful as the House of Lords officials have been in my trying to get there, I can see that somebody, including me, could pull bits of it to pieces.
Lord Grabiner (CB)
My Lords, without wishing to repeat points that I made on earlier amendments, I will refer briefly to the amendments put forward by the noble Lords, Lord Willetts and Lord Stevens of Birmingham, Amendments 58 and 59. Both draw attention to key deficiencies in the current drafting of the Bill.
On moving Amendment 58 at the outset of this group, the noble Lord, Lord Willetts, identified a problem with the priorities or procedure to be adopted. All I respectfully say about that is that we need more of a root and branch exercise on the respective powers of regulators, if Clause 4 unhappily ends up in the legislation. This Bill is currently deficient on the relationship between those two mechanisms. Although I agree with the principle identified, I would like to see a more sophisticated response to the problem.
On Amendment 59, the distinction in legislation between “may” and “must” is a lawyer’s old chestnut: “may” is discretionary; “must” is compulsory or mandatory. In order for any body to conclude whether a claim is vexatious, frivolous or a waste of time, it needs some understanding of the facts. I do not think whether it is “may” or “must” matters; it is important that a body has the power to dismiss a case if it is satisfied it is vexatious, frivolous or, for some other reason, unmeritorious.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have a couple of brief points. Following that helpful contribution on Amendment 59, I want to clarify that complaints are very often dismissed as vexatious, but it is important that we do not accept at face value that things are vexatious because somebody has accused them of so being. That can be a way of closing down the complaints procedure.
I also want to raise a query. I may have misunderstood something in Amendment 58 in the name of the noble Lord, Lord Willetts, but it suggests that
“the OfS cannot intervene until a university’s own procedures … are exhausted.”
There is a difficulty there. Often, academics and students to whom I have spoken feel that their dispute is with those very academic authorities, and that even the complaint within the university can get them targeted as free speech troublemakers. It is not straightforward. In some instances, we are talking about a rather toxic atmosphere. Often, the complaint an academic has is precisely because they have been put on some procedure by the university authorities—they may have been suspended or put forward for disciplinary action—which they feel is unjustified. They then get cleared, but all the testimonies from people who have been in this situation make the point that the process is the punishment these days. As I said earlier, the period in which an academic has been labelled as a user of hate speech, suspended from their job or whatever it is can be really discrediting and damaging to their reputation. It is slightly more complicated than has been presented, and this is one of the problems with the state of universities at present, in relation to free speech.
Baroness Garden of Frognal (LD)
My Lords, I rise to speak to my noble friend Lord Wallace of Saltaire’s contention that Clause 8 should not stand part of the Bill. He is back from his holidays but is speaking at the funeral of a very old friend in Bradford. He is very regretful that he cannot be here with us for the Bill, about which he cares so much.
This amendment harks back to the passionate speech of the noble Baroness, Lady Deech, at Second Reading, in support of the Office of the Independent Adjudicator. She was critical in setting it up and said it was doing a decent job. It exists and does a reasonable job of dealing with complaints, but Clause 8 is a complete duplication of bureaucracy. We noted that it was recommended by a Policy Exchange paper, but we do not have to do everything that Policy Exchange tells us to do. This clause will impose considerable additional costs but where are the benefits of this? Surely the Office of the Independent Adjudicator should be able to sort out most of the issues in this clause.
Anyway, universities should be able to manage their own complaints themselves, which most of them do very adequately. Mistakes will of course be made occasionally, but we cannot necessarily assume that state intervention will do better in most cases than the universities themselves. This very lengthy clause, with lots of duplication, is surely not necessary. I am sure my noble friend Lord Wallace would have put it much more passionately, but we simply propose that there is no need for this clause in this Bill.
Baroness Thornton (Lab)
My Lords, I shall speak to Amendment 61 in the names of my noble friends Lord Collins and Lord Blunkett, and say to the Minister that this group of amendments is striving to make sense out of something. I read this clause several times over the weekend and found it very puzzling and complex. The Minister needs to look at this amendment and the complete complaints procedure again. I am very struck by the words of the noble Baroness, Lady Garden: it imposes costs, but where are the benefits?
The amendment of my noble friend Lord Triesman has tried to impose order on a very confusing clause. It may not be perfect but he is initiating a useful discussion. Every amendment in this group seeks to clarify and modify how the complaints procedure might work. As the noble Lord, Lord Willetts, said at the opening of this debate, the complaints procedure is not clear.
My noble friend’s amendment would ensure that free speech complaints are considered alongside other competing freedoms, such as the Equality Act 2010 and the Counter-Terrorism and Security Act 2015, and that the Government should specify in guidance how that should happen. We have been raising issues around the compatibility of this Bill with those Acts all the way through this discussion and we are raising it again in relation to the complaints procedure.
I will not add any more to that. I think the Minister—the noble Earl or the noble Baroness—will need to address all these amendments, including ours, because, as it stands, this is not a satisfactory clause at all.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, I shall now address the group of amendments that relate to the complaints scheme to be operated by the Office for Students.
Amendment 58, from my noble friend, Lord Willetts, seeks to mandate the provisions set out in paragraph 5(2) of new Schedule 6A on what complaints can or should be ruled out of scope for consideration under the scheme. Amendment 59 seeks to mandate that the OfS must dismiss “frivolous or vexatious complaints”, with the intention of reducing the potential bureaucratic burden on the OfS and higher education providers.
The current drafting’s use of “may” rather than “must”, as highlighted by the noble Lord, Lord Grabiner, is intentional. The wording is derived from the Higher Education Act 2004, which established the student complaint scheme of the Office of the Independent Adjudicator for Higher Education. This is the usual drafting approach when setting up a new body or new scheme in legislation, allowing for the decision-making body to have discretion in setting out the detail.
New Schedule 6A sets out the bones of the new scheme but it will be for the OfS to provide the detailed rules. The OfS needs the discretion to determine which rules should apply, looking at the scheme in the round. The noble Baroness, Lady Fox, highlighted some of the reasons why that is important. We anticipate that the Office for Students will consult on the rules, so it will be informed by key stakeholders in the sector. These rules will set out the detail of the type of complaint that the scheme will consider and the process to be followed.
I think we are aligned on my noble friend’s aspiration for coherence—he is smiling behind me; I am not sure whether that is encouraging—but it is a question of where that coherence is established. We respectfully suggest that that should be done in detail in the rules. My noble friend will absolutely be aware that paragraph 5(2)(b) of new Schedule 6A clearly sets out what is within scope for the OfS to decide—whether a free speech complaint should not be referred until the internal procedures are exhausted. We would expect that to be set out more clearly and in more detail when the OfS has gone through this procedure of drafting the rules.
It is also the intention that complaints should be referred under the scheme within a specified time limit. In the case of the OIA, the time limit is 12 months from the date on which the higher education provider tells the student its final decision. The OfS may well decide on a similar provision, but that is a level of detail for it to determine; it is too specific to be included in primary legislation. It is not necessary to mandate that there should be a time limit, as the OfS will want and need to include this as a matter of good administration. The OfS will also set out rules on how it will deal with frivolous or vexatious complaints for the reasons that the noble Lord, Lord Grabiner, eloquently exposed.
I know that my noble friend and the Committee more generally will have spotted that we use “must” in a couple of cases in the Bill. That is where it is considered particularly significant, such as in the requirement to make a decision and the need to make a recommendation if the regulator considers a complaint justified where “may not” is used—that is, where we have a prohibition.
Amendment 60, from my noble friend, Lord Sandhurst, seeks to confirm in the Bill that the OfS has the power to determine whether a provider has breached its freedom of speech duties. My noble friend is right to think carefully about how the complaints scheme will work.
My noble friend mentioned the Court of Appeal decision in Maxwell and the powers of the OIA. This was about its power to adjudicate on disability discrimination. The court held that it was the OIA’s role to review complaints and consider whether the provider acted reasonably and in a justified way. Here, the Bill sets out the parameters of what the OfS must decide. It is clear that it will have the power to determine whether they consider that there has been a breach of the free speech duties.
The Bill specifies that the OfS must provide a scheme under which it is to review and determine free speech complaints. Such complaints are defined as claims that the person has suffered adverse consequences as a result of the governing body’s action or inaction, and
“claims that, or gives rise to a question as to whether, the action or inaction was a breach of a duty of the governing body under section A1.”
That is at paragraph 2 of new Schedule 6A. Where a complaint is referred under the scheme, the OfS will be required to make a decision as to the extent to which the complaint is justified. As I mentioned earlier in relation to the Maxwell case, this makes it clear that the OfS may determine whether a provider has breached the freedom of speech duties. Indeed, it is a central part of how the complaints scheme will operate.
Lord Willetts (Con)
I thank the Minister for that response to a brief but very illuminating debate. I certainly learned from the debate that there are defects in the two amendments that I tabled. The noble Lord, Lord Grabiner, said they lacked sophistication, so I plead guilty to a certain rustic simplicity in just saying what should be done, and I have learned my lesson. I also understand the point that we have to do some investigation to establish whether a complaint is vexatious. However, I have to say to the Minister that at the end of this debate the underlying concern—again, I think, shared across all sides of the Committee—has not really been addressed. It is that some event does not happen, for whatever reason, at a university, and the following day a well-organised critic fires off a letter to the OIA, a letter to the OfS, tries to start civil litigation, writes a letter of complaint to the vice chancellor and phones a couple of newspapers. That is not in the interests of anyone who cares about freedom of speech and higher education. I think all of us on different sides of the Committee would like some greater clarity about the sequencing and the hierarchy that ensures that a student union or a university does not face that issue. However, in light of the Minister’s comments—I completely accept the defects in my amendments—and in the hope that in some way we can return to these debates, I beg leave to withdraw the amendment.
Lord Johnson of Marylebone
“(3A) The duty in subsection (1) includes a duty to consider whether a registered higher education provider or any constituent institution is overly reliant on overseas funding from a single country of origin.”Member’s explanatory statement
This amendment, together with the other amendment to this clause in Lord Johnson’s name, would include income from international tuition fees in the definition of overseas funding and ensure that the Office for Students has a duty to monitor over-reliance on overseas funding from a single country.
Lord Johnson of Marylebone (Con)
In rising to speak to Amendments 63 and 64 in my name, I draw attention to my interests in the register as a visiting professor at King’s College London, chairman of Access Creative College and chairman international of ApplyBoard.
I am not sure we are capturing exactly what we need to in this section of the Bill on overseas funding. If we are to legislate afresh, as we seem to be doing, on freedom of speech in higher education, the chilling effects arising from the excessive concentration of international research and tuition income surely need to be part of the discussion. The four categories of relevant overseas funding in Clause 9 are all good as far as they go, but they manage to exclude altogether the largest single source of such income. That is, of course, the income that universities receive from the uncapped and unregulated tuition fees charged to international students.
Like so many in this place, I strongly support the contribution that international students make to the success of our higher education system, and I am very pleased indeed that we met the Government’s target of 600,000 international students in this country by 2021, 10 years ahead of the 2030 target. There are many critics of international students in the country today. I note only that the proportion international students represent in the overall student population has not changed markedly since 2014. While the actual number has increased by 28% since that time, that has been matched by a similar growth in the UK student population, meaning that their proportion of the mix has stayed broadly the same.
Lord Grabiner (CB)
My Lords, if I may respectfully say so, I was extremely interested in the observations of the noble Lord, Lord Johnson of Marylebone, in support of the two amendments to which his name is attached. But there is another aspect of this discussion that gives me an opportunity to have a personal grouse, based on my own experience of higher education in the UK. Until recently I was the master of Clare College, Cambridge, and before that I was for many years chairman at the London School of Economics. We always took enormous pleasure on those occasions when we were able to recruit under-privileged students from poor postcode districts. At the end of the day, it is a terribly important part of the education process that we are concerned with.
The big problem with the current state of play—it has been going on for many years now—is that the cost of educating an undergraduate student at, say, Russell group universities is significantly more than the £9,250 charge that we make. Accordingly, most universities operate at a working loss in respect of the undergraduate school. It is only when you get to the uncapped overseas funds and the kinds of people we are talking about in these amendments that universities get an opportunity to, in effect, balance the books. I am afraid that for many years now, to balance the books we have had to take unregulated students from abroad—with, I entirely agree, a special emphasis at the moment on China.
Some of these fees are literally enormous, at £20,000, £30,000 or even more for certain specified courses. This is a very unsatisfactory state of affairs, not least because, when these students come from somewhere like mainland China, we are not interested in poor postcodes or whether they come from underprivileged families and so on. The answer is that they do not: they come from well-heeled families or state-funded backgrounds, enabling them to be educated here and—invariably, I am afraid, in most cases—to go straight back to their home countries. This is a serious concern, because we need strong cohorts of foreign students to come to our universities, without whom we would not be able to balance the books.
Lord Hope of Craighead (CB)
My Lords, following on from the noble Lord, Lord Grabiner, two words in the amendment cause me some concern: “overly reliant”. The problem is that no touchstone is provided in the amendment as to how that phrase is to be applied.
As it stands, subsection (2) gives clear guidance as to what the OfS is to look at. The problem to which the noble Lord, Lord Johnson of Marylebone, has drawn our attention is very widespread. It is not only China that one has to consider; there may be other countries too, and there is the question of balancing the contribution made in proportion to the size of the country, and whether it is so great that it gives rise to particular concerns. However, if I may say so with respect, the clause would be improved if it said a little more about the particular point to which the OfS should direct its attention, so that it knows itself what it should be doing.
Lord Willetts (Con)
My Lords, in the light of that last comment, I can briefly intervene with reference to Amendment 65 in my name. I register my interests as a member of the board of UKRI and a director of Thames Holdings.
I have two questions for the Minister but they arise also from the important intervention of my noble friend Lord Johnson of Marylebone. First, we do indeed need some sense of proportionality; the figure of 1% of the total income of a registered provider was an attempt to get some sense of what constituted undue influence. It would be very helpful to have an update from the Minister on the Government’s view on that. Secondly—I am speaking very much in a personal capacity—this clause is really about research funding. Of course, my noble friend has made an important point about teaching income. In the legislation which he steered through this House, there was a rather clear distinction between teaching, which is a responsibility of the OfS, and research, which is a responsibility of UKRI. It is important that those two bodies work together.
It would also be helpful to hear from the Minister how she envisages the OfS scrutinising what in this clause is predominantly research funding, for which the OfS has historically and legally not had any responsibility, but for which a different government body, on whose board I sit, currently has the main responsibility.
Baroness Smith of Newnham (LD)
My Lords, I rise in part to move Amendment 66 in the name of my noble friend Lord Wallace of Saltaire. Before I do that, I would like to speak to the amendments tabled by the noble Lord, Lord Johnson of Marylebone, and the noble Lord, Lord Willetts.
My immediate reaction on reading Amendment 63 and the term “overly reliant” was to ask, how defined? In many ways, Amendment 65 in the name of the noble Lord, Lord Willetts, shows that there is a way of defining overly reliant; 1% might be the right amount or might not, but it begins to give us a way of saying what over-reliance means. Therefore, I believe Amendment 65 to be a helpful addition.
Amendment 64 is interesting but, as the noble Lord, Lord Willetts, pointed out, we need to be careful regarding whether we are talking about research funding or wider university finance. The noble Lord, Lord Grabiner, is obviously correct that the home undergraduate fee does not cover tuition adequately; international student fees are deemed by many higher education institutions to be extremely important. However, an important question raised by the noble and learned Lord, Lord Hope of Craighead, is: what is over-reliance? If 60% of a British university’s students came from one country and then its economy completely collapsed, that would leave the university more than decimated—potentially, minus 60% of its fee income if that market disappeared. So it is in many ways in the interests of higher education institutions to make sure they are not overly reliant on a single source of student fees.
Quite separate from that, in the case of freedom of speech the question then becomes: to what extent do we believe there is an issue about where the money is coming from? If we are talking about Confucius Institutes, for example, that is money coming directly into universities, and there might be questions about the conditions. If we are talking about undergraduate or graduate students coming to study in the UK, the questions might be slightly different. Wealthy parents from whichever country will not necessarily say, “We will send our offspring to the United Kingdom to be educated only if freedom of speech is in some way curtailed or if certain norms and values are articulated.” That is probably not what we will hear from China.
If there is somehow government intervention from countries paying fees for their brightest and best to come to the UK, maybe it is something to be explored, but I am not sure that this Bill is the right place to be doing that. There is a whole set of higher education funding issues that we might need to think about, but that then becomes very specific in the Bill, and I am not wholly persuaded that fee income will be a major factor in curtailing freedom of speech.
That also underlies Amendment 66 in the name of my noble friend Lord Wallace, which is a probing amendment to ask to what extent His Majesty’s Government think there is a problem with regard to the funding of student unions. Is money coming directly from the Governments of other countries? If so, are they constraining what student unions are able to do? The real question is: is this a problem that needs to be resolved, or is it simply the Government thinking they might like to have another regulator exploring a bit more what student unions are doing? In that case, perhaps we should not support that particular part of Clause 9.
Lord Collins of Highbury (Lab)
My Lords, I thank the noble Lord, Lord Johnson, for raising this issue, because it is an important thing we should debate. Fundamentally, it is about balance and being proportionate—and, as we have heard, there is also the business case about overreliance on a single source of income. Certainly, if foreign students are coming from one country, as the noble Baroness, Lady Smith, said, clearly there is a risk factor in that.
I will start by saying, as I think the noble Lord, Lord Johnson, was saying too, that foreign students are an important element of our soft power. We should not underestimate how making our universities open to overseas students is an important part of the three Ds of our integrated policy of defence, diplomacy and development. Okay, I hear what the noble Lord, Lord Grabiner, said: often, the people whom we are attracting are a growing part of the wealthy side of society and instead we should be focusing on other areas, particularly in Africa, where we should be encouraging more students. However, when I was a student, I found that many of the overseas students that I became friends with subsequently became leaders of countries and influencers of countries, and we should not underestimate that. So I start by saying that I am very much in favour of supporting overseas students and that universities should continue to encourage them—especially from China. I do not think we should be debating that Chinese students are a bad thing. The Chinese Communist Party is a bad thing, but not Chinese students—we should absolutely be committed to that.
As I said at Second Reading and in other debates, the key to addressing the influence of income on free speech is transparency. I am sympathetic to the idea that there should be a requirement to say just what proportion of income is coming from which areas—that is absolutely right—but I also support the view of the noble Lord, Lord Willetts, that in introducing that element of transparency we should not place burdens on institutions that could inhibit academic research and the commitment to follow through those income streams. When we look at other countries, certainly when it comes to reporting requirements, we are talking about a much higher level than those currently envisaged by the Government.
So it is very important that we address these issues, but I share the concern of the noble Baroness, Lady Smith, that this Bill is not necessarily the appropriate place to do it.
Baroness Barran (Con)
My Lords, I would like to address the group of amendments relating to overseas funding.
Amendments 63 and 64, tabled by my noble friend Lord Johnson of Marylebone, seek to amend the transparency measures concerning overseas income received by higher education providers. They would add tuition fees to the categories of overseas funding in scope and require the OfS to consider whether a provider or college was “overly reliant” on funding from a single country of origin.
Increasing awareness of foreign interference risks in higher education is of course vital. That is why we have already added measures to the Bill that will require the OfS to monitor the overseas funding of registered higher education providers and their constituent institutions so that it can assess the risk that the funding may pose to freedom of speech and academic freedom in the provision of higher education within a given institution. However, we have ensured that the scope of these measures is proportionate to the risk, in order to ensure that our universities remain a place where freedom of speech can thrive.
The Government consider that these further amendments are unnecessary and potentially overly bureaucratic. Providers are already required to submit data to the OfS on course fees by broad domicile, broken down by UK, other EU and non-EU. In addition, international student numbers are reported to the Higher Education Statistics Agency and published online, broken down by country of domicile and by provider. This means that information about international tuition fees is already available to the OfS. If the OfS considered that a provider was overly reliant on student tuition fees—the noble Lord, Lord Collins, talked about the business case for overseas students—it could take steps if it thought that this would threaten the financial sustainability of the provider. That is included in the registration conditions that providers must already comply with. The OfS can issue sanctions for breach of these conditions.
Amendment 65, in the name of my noble friend Lord Willetts, seeks to increase the financial threshold for reporting required by higher education providers under Clause 9. This would require that no less than 1% of the total income of a higher education provider would fall to be reported, thereby reducing the burden of reporting on providers.
For many large providers, 1% of their total income could represent tens of millions of pounds, but I am sure noble Lords will agree that, for example, £1 million would be a very significant amount of money if an individual member of the academic staff received it as a research grant. Amendment 65 would mean that such instances might not fall to be reported.
The aim of Clause 9 is to increase the transparency of overseas funding. The OfS will require providers to supply information to them on relevant overseas funding. Relevant funding is defined as certain specified types of funding received by the provider, a constituent institution or a member or members of staff from a relevant overseas person, where that exceeds a threshold—to be set out in legislation—within a period of 12 months. The current intention is to set this at £75,000 in a 12-month period for providers and colleges.
We recognise that the risk of undue influence arising from smaller amounts of overseas income is likely to be lower. We have therefore ensured that the scope of these measures is proportionate to the possible risk to freedom of speech. We believe that the intended threshold of £75,000 for providers and colleges is appropriate, as it will strike the right balance by increasing the transparency of significant transactions without creating undue bureaucracy by requiring the reporting of smaller transactions that are less likely to pose a risk. The information required is further narrowed in scope, as “relevant overseas person” is a limited category and there will also be countries that are excluded from this provision that will be set out in regulations.
We take the impact on the higher education sector seriously, which is why the Bill includes the measures that I have just described to reduce the level of reporting required. We are therefore ensuring the proper targeting of the measure to the risk to freedom of speech, and that the burden on providers will not be too great.
I now turn to Amendment 66 tabled by the noble Lord, Lord Wallace of Saltaire, and spoken to by the noble Baroness, Lady Smith of Newnham, which seeks to clarify why students’ unions have been included within the scope of the overseas income measure in Clause 9. The overseas funding measures in the Bill seek to increase the transparency of overseas donations and other income received by higher education providers, their constituent institutions and students’ unions to better enable the OfS as a regulator to understand the possible extent of financial leverage from a foreign source, which may influence behaviour to pose a threat to freedom of speech and academic freedom. The information reported will enable the OfS to monitor and report on any sector trends and patterns.
In order for these measures to have the maximum intended effect on countering the threat of foreign interference in higher education and to increase public confidence in the sector, we considered it vital that the overseas funding duties extend to students’ unions, as other measures in the Bill do. Students’ unions across England are in receipt of a variety of overseas income every year and there is diversity across students’ unions in the ways in which they are funded. Information published by the Charity Commission demonstrates that a large number of students’ unions are very reliant on the annual donations and legacies that they receive. Therefore, it would be remiss not to include students’ unions in Clause 9.
The scope of the measure—noting in particular the threshold amount, which we anticipate will be set at an appropriate level for students’ unions—means that the burden on those unions will not be too great and will ensure the proper targeting of the measure to the risk to freedom of speech. I trust I have given reassurance that Clause 9 as drafted offers sufficient and proportionate protection against undue foreign influence on freedom of speech and academic freedom within higher education.
Lord Johnson of Marylebone (Con)
I am grateful to my noble friend the Minister for her response and to noble Lords for their excellent contributions. I will reflect on the debate and particularly on whether this was the best place for my amendment, which I recognise I have rather contrived to attach to this Bill. In the meantime, I am very happy to beg leave to withdraw it.
Baroness Thornton
“(1A) A person may not be appointed as the Free Speech Director if the person has at any time within the previous three years made a donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.(1B) The person appointed as the Free Speech Director may not while in office make any donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.(1C) The appointment for the Free Speech Director must be made by an independent advisory panel to be established by regulations made by the Secretary of State.(1D) The appointment of the Free Speech Director is subject to a confirmatory resolution of the relevant Select Committee of the House of Commons. (1E) A statutory instrument containing regulations under sub-paragraph (1C) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”Member’s explanatory statement
This would ensure that the Free Speech Director has not recently and cannot while in office donate to a political party, and that they are only appointed subject to confirmation of an independent advisory panel, a Select Committee of the House of Commons and a resolution of each House of Parliament.
Baroness Thornton (Lab)
My Lords, Amendment 67 was tabled in the names of my noble friends Lord Collins and Lord Blunkett. I raised the issue of the appointment of the director at Second Reading. At the time of our Second Reading, which I think was around June, the job had been advertised, with a closing date of 13 July. I do not know what happened after that. I appreciate that the Government have had their mind elsewhere over the last few months, so it is possible that it has sunk without trace. I suppose my first question is: what happened? Was an appointment made and, if so, who is that appointment?
We hope that Amendment 67 is helpful for the Government to fulfil the Prime Minister’s stated ambition for integrity and honesty in politics and government. It is about the kind of person who should be appointed to this job and the accountability and safeguards that need to be in place to ensure that they can do their job in the best possible way. Our view is that we should ensure that the free speech director has not recently, and cannot while in office, donated to a political party. Their appointment should be subject to the confirmation of an independent advisory panel of a Select Committee of the House of Commons and a resolution in each House of Parliament.
This is an important job, and we should be using the accountability structures that we have to ensure that this job does what it says it will do on the tin and that the person appointed is appropriate. This was raised by my honourable friend Matt Western in the Commons, at Committee and Report stage. He raised concerns at that time, and we still have those same concerns. I would like to be updated on where exactly we have got to.
If the appointment has not yet been made, at Second Reading I raised the job description, and recommended noble Lords might read it—and some may have done so. The position seemed to require no legal background or expertise in higher education. The person holding this job will be tasked with settling contentious cases, so it must be in our interests that they have a broad understanding of the sector and of the legal and regulatory frameworks around free speech. None of those things was essential in the job description, as it was in July. I ask the Minister whether that has changed. Maybe now there has been this hiatus, there is an opportunity to return to that and perhaps start again.
Baroness Smith of Newnham (LD)
My Lords, I think for the last time I will speak to an amendment on behalf of my noble friend Lord Wallace of Saltaire, and I will also speak to Amendment 67. My noble friend Lord Wallace’s amendment also talks about the role of the free speech director. It is about the appointment process. There is a clear issue with the nature of the role, as the noble Baroness, Lady Thornton, has already pointed out.
It is absolutely crucial that the person appointed enjoys the respect of all parties. I do not mean respect in terms of agreeing with what they are going to say but in feeling that they will be impartial. As the noble Baroness pointed out, it would be preferable if the free speech director had some legal expertise, and they also need to understand higher education. But it is absolutely vital that they have the respect of the higher education sector, hence Amendment 68, which suggests that the nominee should come from the Secretary of State after consultation with UUK and with the approval of the House of Commons Education Select Committee. That would at least mean that there is some cross-party approval.
However, there is a real question about the role of the free speech director and how it is going to be possible to appoint someone who is able to adjudicate and lead on free speech, without already being identified with various sides of political debates. Amendment 67 is important, but I would like the Minister to explain, if she can, how the Government feel they are going to be able to appoint somebody deemed to be appropriate by all sides of very often contentious debates, and by whom students, academics and others in higher education feel their interests will be served.
Viscount Stansgate (Lab)
My Lords, I support my noble friend Lady Thornton and I support the spirit behind both Amendments 67 and 68, for the following reason. Over the years—you could argue, over the centuries—the balance of power between the Executive and legislature has changed, and it has changed to the detriment of the legislature. Therefore, whenever I see an amendment of the kind proposed in Amendments 67 and 68, which requires that a particular appointment—in this case it is the free speech director but it could be any other important post that arises in legislation—should be subject to the approval of the relevant Select Committee of the House of Commons, I think that is a very good thing. It would be a modest step towards rebalancing the imbalance that I fear is infecting the relations between both Houses of this Parliament, and between us and the Executive. I support the amendments for that reason.
Baroness Barran (Con)
My Lords, I will now address the amendments concerning the appointment of the new director for freedom of speech and academic freedom at the Office for Students. Amendments 67 and 68, tabled by the noble Lords, Lord Collins of Highbury and Lord Wallace of Saltaire, and spoken to by the noble Baronesses, Lady Thornton and Lady Smith, cover similar ground, as the noble Baronesses pointed out. They seek to introduce additional requirements to the process for appointing the new director.
Amendment 67 would require the appointment to be made by an independent panel, established under regulations and confirmed by the Education Select Committee. It would further prevent the appointment of a person who had made any political donations in the last three years and prohibit them from making any donations during their tenure. Amendment 68 would require the Secretary of State to consult Universities UK and obtain approval from the Education Select Committee before nominating the director.
I make it clear that the director for freedom of speech and academic freedom will be appointed in the same way as other members of the OfS board, by the Secretary of State under the Higher Education and Research Act 2017. Although this is not officially a public appointment, it will be done in accordance with the public appointments process, which will ensure the independence of the process. The noble Baroness, Lady Smith, rightly asked how people can be reassured and have confidence in the process, and that is the answer. The involvement of the higher education sector in the appointment through formal consultation would risk threatening the independence of the role. I emphasise that, as has been said in the other place, freedom of speech and academic freedom are fundamental principles in higher education; they are not the preserve of one particular political view.
I point out that one role within the OfS involves appearing before the Education Select Committee as part of the process for being appointed: the chair. No other member of the board, such as the chief executive officer or the director for fair access and participation, requires their consideration or consultation with the sector. It would be inconsistent to make different rules for the director for freedom of speech and academic freedom, and we believe it would set an unhelpful precedent.
Lord Deben (Con)
I am always suspicious when Ministers use the word “inconsistent” to overcome a problem. It is inconsistent because it is different. The particular person here needs to have the confidence of all of us. I was impressed by the comments of the noble Viscount, Lord Stansgate, who made a point that we in this House ought to make very clearly to Ministers: the power of the Executive has increased, is increasing and ought to be diminished. In this case, it does no harm to the Government to say, “What a good idea. Wouldn’t it be a good idea to take some of these concepts and make sure that people have confidence?” I no longer have any confidence in decisions made by Ministers unaffected by Parliament. The noble Viscount, Lord Stansgate, is right, and the word “inconsistent” does not get out of the problem.
Baroness Barran (Con)
I am sure that my noble friend is right that it does not. He may dislike the word “precedent” as well, but it would set a different precedent for how these appointments are made. When you have a chief executive and a director for fair access and participation who are not subject to that kind of consideration or consultation with the sector, it is fair to ask why this role should be, given that those are also highly important and sensitive roles.
Baroness Smith of Newnham (LD)
Would the noble Baroness feel the same regardless of who was Secretary of State for Education? Is there not a danger that politics could perhaps be seen in the appointment process? Might it not be better to make it as objective as possible? A precedent might actually be the way forward.
Baroness Barran (Con)
By following the public appointments process, which I hope your Lordships trust, we are endeavouring to make it as independent and objective as possible.
On the noble Baroness’s point about legal training or expertise, I reassure your Lordships that the successful candidate for the role will have been assessed for their understanding of the legal framework concerning freedom of speech and academic freedom, including how this relates to other relevant legislation. Although legal knowledge would be a benefit for the person undertaking the role, the director will be supported by a team of lawyers, caseworkers, board members and others at the OfS to support decisions under these measures. These decisions will legally be those of the OfS and not of the director personally.
Important oversight will also be built into the system once the director has been appointed. The director will be responsible for reporting to the OfS board on the performance of the OfS’s free speech functions. This reflects a similar provision in Schedule 1 to the Higher Education and Research Act 2017, which makes the director for fair access and participation responsible for reporting to the other members of the OfS on the performance of the OfS’s access and participation functions. This will not only ensure oversight of the role of the director for freedom of speech and academic freedom by the rest of the OfS board; it will also allow the OfS to co-ordinate and monitor its free speech functions better.
I therefore confirm that the appointment of the director will be in line with the usual public appointments processes, and there will be ongoing oversight of the role. On the noble Baroness’s question about where we have got to in the appointment, applications for the role closed on 27 July, and we are currently sifting them, after which there will be interviews and an announcement in due course. Given this, I hope that noble Lords will agree that these amendments are not required.
Baroness Thornton (Lab)
I thank the noble Baroness for that explanation. I also thank my noble friend Lord Stansgate and the noble Lord, Lord Deben, for their comments. We of course support the amendment from the noble Lord, Lord Wallace—I thank the noble Baroness, Lady Smith, for her comments in support.
This is not a satisfactory situation. I suppose we should be quite pleased that the accusation of pre-emption that I made at Second Reading is not happening. I suspect that this is not through design—through deciding to wait until the legislation is on the statute book before making the appointment—but rather through not having got round to doing it yet, which is par for the course in government at the moment. I hope that will change over time, particularly if we have a change of Government.
In a way, this is the most partisan amendment that we on these Benches have put down. It is based partly on the appointment of the chair of the OfS, which was not uncontroversial, because it was a donor to the Conservative Party and someone who made a speech in a gathering of very right-wing European politicians in Hungary, as mentioned in the discussions on the Bill in the Commons and at Second Reading. So, pardon me, but we are a bit suspicious about this appointment.
My point is that made by the noble Lord, Lord Deben: this is a particularly special appointment, and it needs to have the confidence of the whole higher education sector. The Government’s job is to ensure that that happens, and I am afraid that it is not the case at the moment. However, I beg leave to withdraw my amendment.
Lord Collins of Highbury
“Expiry
(1) This Act expires at the end of the period of three years beginning with the day on which it is passed, subject to subsection (4).(2) A Minister of the Crown may by regulations made by statutory instrument repeal any of the provisions of this Act after one year from the day on which it is passed if the Minister is not satisfied that the provision is working as intended.(3) Before the end of the period of three years beginning with the day on which this Act is passed a Minister of the Crown must lay before Parliament a written report on the effectiveness of the provisions of the Act.(4) A Minister of the Crown may by regulations made by statutory instrument—(a) provide that this Act does not expire in accordance with subsection (1), in full or in part, subject to approval by resolution of both Houses of Parliament, or(b) make transitional, transitory or saving provision in connection with the expiry of any provision of this Act.(5) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
Lord Collins of Highbury (Lab)
My Lords, it is appropriate that the last amendment of the day should be considered as a sunset clause. Amendment 70 would introduce a sunset clause, ensuring that it expired after three years and providing for clauses to be removed if they are not working. I stress that the purpose of this amendment is not to deny the importance of freedom of speech, academic freedom or even whether the Bill is necessary; it is to give the Government the opportunity to gather more evidence on whether the Bill is necessary and whether its provisions are fit for purpose.
Unfortunately, in the debates we have heard—not only today, but throughout Committee—a number of noble Lords expressing opinions about whether the Bill is really necessary. The Bill is there and the Government will pursue it, but I want to give all those noble Lords who have some concerns about it—and particularly about the evidence on which it is based—the opportunity to support this amendment so that, with the support of the academic institutions themselves, we can review the practical elements of the legislation and see how well it is working. This will give the Government the opportunity to have second thoughts, even after the Bill passes all its stages.
I hope that the Minister will give it some consideration; I suspect that she will not. The noble Earl, Lord Howe, said at the beginning that he has been in listening mode. The important thing is that we are at one on the importance of academic freedom and freedom of speech. We are concerned about some of the unintended consequences of the Bill and how they may actually have the reverse impact. This is why something like a sunset clause may be necessary, so that we do not bake into statute something that will end up denying freedom of speech rather than supporting it. I hope that noble Lords will give due consideration to this. I beg to move.
Baroness Bennett of Manor Castle (GP)
I will speak briefly to Amendment 70 in the name of the noble Lord, Lord Collins of Highbury, who has just introduced it very clearly, and to which I attached my name. In doing so, I am prompted to declare an interest. The noble Baroness, Lady Smith, made a declaration of interest that made me wonder whether I should do the same, so I will take this last possible opportunity to declare that I receive support from King’s College London in the form of an intern—I now have a second excellent intern. I am not sure why that should be declared, but it is now on the record.
The noble Lord, Lord Collins, set out the case for the amendment very clearly. Like many speakers today, I remain convinced that it would be better not to have this Bill at all. But given that we have it, to add a sunset clause—a checkpoint written in the Bill to see what is happening—is unarguably a good idea. To stress the point that this is not a party-political matter but purely a practical, sensible and helpful suggestion to the Government, I will quote the noble Lord, Lord Grabiner, from earlier in this debate:
“Often, the legal process, especially a new-fangled one, confuses and undermines well-intentioned purposes. It is also often the case that the introduction of lawyers and the courts merely fuels increased tension.”
There have been huge concerns expressed around this point about the Bill. This amendment is just a simple and practical measure to say, “Let’s have a checkpoint. Let’s not have another version of the Dangerous Dogs Act; let’s make sure we’re not making things worse by adding this simple provision, Amendment 70.”
Baroness Smith of Newnham (LD)
My Lords, a sunset clause seems to be eminently sensible in a Bill that seems to have so little support. I also note that in proposed new subsection (4) in the amendment, there is actually an opportunity for the Government to offset the sunset aspect of the clause, should they feel that the legislation is going well,
“subject to approval by resolution of both Houses of Parliament”.
This would mean that the legislature can keep its rightful place, even while we allow the Government to go ahead with this legislation, about which we are not entirely convinced.
Lord Adonis (Lab)
My Lords, if I followed the earlier debate correctly, we have now had six months without a free speech director. I believe that that is correct, based on my noble friend’s earlier amendment probing when the appointment was going to be made. If it were so vitally important that this legislation was on the statute book because there was an imminent danger to freedom of speech, presumably the free speech director would have been appointed by now.
In my experience, it is a golden rule of public appointments that those who are most important are filled immediately—for example, we would not be without a Prime Minister for six months because the country would not be run. However, it does not appear that freedom of speech in universities has been imminently threatened and undermined by the fact that there has not been this rather Orwellian-sounding and very un-Tory-sounding person—a free speech director; somebody from the centre who will decree that free speech shall prevail—in post.
If the sunset clause does come in, as my noble friend is suggesting, it may be that, by the end of it, we will still not have a free speech director, and so we will not have seen whether these vital provisions will underpin freedom of speech in our campuses up and down the land. Since this appears to be largely a Bill in search of a problem, removing it from the statute book at the earliest possible opportunity—maybe even before the Orwellian free speech director has been appointed—would seem to be a thoroughly worthwhile development. Since, by then, there could be a Labour Government in office—I imagine that the Tories would be very wary of a free speech director appointed by a Government opposed to them, who could have all kinds of secret agendas—this could be in their interests too.
The Minister may have a wonderful opportunity here to avoid implementing legislation which the Government themselves do not appear to be very keen to implement at the moment—given that they still have not appointed a key officeholder under it—and to prevent it being misused by their political opponents.
Lord Deben (Con)
The noble Lord, Lord Adonis, is always a pleasure to listen to.
As a matter of fact, I am not in favour of this amendment, but I want to ask the Minister a question. One of the reasons I raised the question earlier about public appointments is that the period of time it takes to make any appointment is becoming a scandal. I am still waiting for two appointments to the Climate Change Committee. The meetings of the chairmen of all the organisations always say that they are fed up with trying to run committees in which there are no members because the system takes so long.
Could I have the assurance of the Minister that, under this Bill, an appointment will be made, and made quickly? Will she say to the Government as a whole that, until the system works quickly, we will go on complaining about it? It is not reasonable to have so long a gap. It is not that, for some reason or another, this is not an important appointment—I think that there is a lot to be said for it—but that this problem is true right across the board. The time waiting for appointments gets longer and longer, and the process gets stuck more often than it should.
Baroness Barran (Con)
My Lords, the amendment tabled by the noble Lord, Lord Collins, also in the name of the noble Baroness, Lady Bennett of Manor Castle, would make the Bill subject to a sunset clause, with the Act to expire three years after the date of enactment, unless a report is made to Parliament and regulations are made to renew the Act. It would also allow Ministers to remove provisions of the Bill one year after enactment if they were not working as intended.
My noble friend Lord Deben shared his concerns about the speed of the appointment process. Sadly, I do not possess a magic wand in relation to Defra appointments, but I shall share his concerns with my noble friends in that department. I also take his serious point that, as someone once said, sometimes when it is slow it is because it is being carefully considered, and sometimes it is just slow. We shall leave it to your Lordships to judge.
We do not think it would be right or appropriate to include a sunset clause in the Bill. Equally, it would not be right to allow Ministers to remove provisions by way of regulations after only one year, when Parliament has only recently approved the Act and there will not have been enough time for the Act to bed in. I should note in this context that it will take time to implement the new statutory regime, with a need to make a number of sets of regulations; to appoint the new director for freedom of speech and academic freedom, as the noble Lord, Lord Adonis, reminded us; to draft guidance; to draft and consult on changes to the regulatory framework; and to set up the new complaints scheme. One year would certainly be insufficient to see the effect of the Bill on the ground. A sunset clause for a whole Act would be very unusual, and we see no reason why this Bill should be treated differently from other pieces of primary legislation.
Lord Collins of Highbury (Lab)
I thank the Minister for her response. I am glad that my amendment has at least given the noble Lord, Lord Deben, the opportunity to be supportive of the Government on this occasion.
Just to pick up on some of the points that have been made, from what the Minister said, it sounds as though, if the appointments process for the director for freedom of speech is anything to go by, it will be at least three years before we see this legislation actually being implemented—and who knows what will have happened in three years’ time?
The important thing that I wanted to stress in moving this amendment is how important evidence-based legislation is. Certainly, a lot of concern has been expressed throughout Committee about the lack of evidence on some of these points. However, I hear what the Minister says, and I am glad that the noble Lord, Lord Deben, has been able to make that contribution at long last. I beg leave to withdraw the amendment.
Higher Education (Freedom of Speech) Bill
Wednesday 7th December 2022
(2 years ago)
Lords ChamberRead Full debate Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 30-R-I Marshalled list for Report - (5 Dec 2022)
18:52 - Division on Amendment 22 - Ayes: 213 / Noes: 172 - Amendment 22 agreed.
Lord Hope of Craighead
“(1A) “Freedom of speech” refers to the Convention right of freedom of expression set out in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as far as it consists of a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form).”Member’s explanatory statement
This amendment seeks to avoid a possible inconsistency between the right to freedom of expression which this Bill seeks to protect and the right to freedom of expression in Article 10 which is the subject of other legislation which may come before the House.
Lord Hope of Craighead (CB)
I will pause for a moment to allow noble Lords to leave the Chamber.
My Lords, there are two amendments in this group to which I will speak, and two government amendments in the same group on which I will comment. Before I go further, I express my appreciation to the Ministers, the noble Earl and the noble Baroness, for their very kind co-operation and discussions with me and others in trying to resolve the points I am raising in this group. I appreciated it very much and, for reasons I will explain later, those discussions were extremely fruitful.
My first amendment is in exactly the same terms as an amendment that I tabled in Committee. It simply asks that a provision be included in the Bill to explain what is meant by the expression “freedom of speech” in this context. The problem arises because those of us who are familiar with Article 10 of the European Convention on Human Rights are used to the expression “freedom of expression”, which is what the article talks about. I was concerned that, by some mischance, the Bill was seeking to create a different freedom from that which Article 10 is talking about. By simply putting in the definition in the fairly stark terms that I proposed in my amendment, I thought I could achieve some degree of certainty. I am glad that there was a certain amount of support in Committee for what I proposed, and the noble Lord, Lord Collins, has very kindly added his name to my amendment; I appreciate his support.
My other amendment in this group is Amendment 10, in which I have the support of not only the noble Lord, Lord Collins of Highbury, but the noble Lord, Lord Moylan, with whom I discussed this issue in some detail. It seemed to me and I think to the noble Lord, Lord Moylan, that more needed to be said about the checks and balances which surround the whole concept of freedom of speech or freedom of expression, whichever terminology you choose to use. The convention makes this very clear, because Article 10 sets out the basic right in paragraph 1 and then in paragraph 2 makes a number of qualifications, which make comparatively good sense, to explain that the freedom is not unqualified.
In discussion with the noble Lord, Lord Moylan, I proposed to put forward an amendment which did not come before the Committee to explain what the phrase “within the law” means. I should explain that the way the Bill expresses the idea of freedom of speech is to encompass it as freedom of speech within the law. It seemed to me that the words “within the law” beg the question of what exactly that expression means. A simple way of doing it is to put in a definition, which is what Amendment 10 does. It states:
“‘within the law’ means that the exercise of this freedom is subject to the duty to respect the rights of others and not to do or say anything that is prohibited by any enactment or rule of law.”
I suggest that this simple terminology encompasses what “within the law” means, because the phrase suggests that there is some qualification on the idea of freedom of speech, and this amendment is trying to explain exactly what that qualification is.
Those are my amendments, and I do not think I need to say much more about them. I have discussed them both in some detail with the Minister—the noble Baroness, Lady Barran.
As for the government amendments, I am delighted to see that, as a result of discussions, the Government have brought forward amendments which recognise the place which Article 10 of the convention has in our overall understanding of what the freedoms we are talking about really mean. For that reason, I am happy to see these amendments, and if they are to be moved I shall not press my first amendment. However, I remain of the position that my second amendment, which has been supported by the noble Lord, Lord Moylan, has real force. When we come to the point, I suggest that it requires considerable thought and support because it is essential that we understand what the words “within the law” really mean. Either they are there for a purpose, and if the purpose is there it should be explained, or they have no purpose at all, in which case those words should not be in the Bill. I hope I have explained my position as shortly as I can. With that introduction, I beg to move.
Lord Moylan (Con)
My Lords, it is a great privilege to speak after the noble and learned Lord, Lord Hope of Craighead. I have the impression—perhaps I am making it more explicit than he was willing to—that the Government have slightly misconceived the issue: it is not a definition of freedom of speech but rather a definition of the legal framework within which freedom of speech is to be understood. That is, the meaning of the words “within the law” is at issue slightly more than that of the words “freedom of speech”.
Lord Macdonald of River Glaven (CB)
My Lords, the noble Lord may be being rather kind to the Prussian police. I have no doubt that in the early 19th century the Prussian police were extremely interested in what was said in colleges and on street corners.
Lord Moylan (Con)
I am happy to take the historical dispute offline, as they say, and discuss it with the noble Lord afterwards.
Our concept of freedom of speech in traditional English law is broader. It concerns not merely things that are said in the press but what you might say at Speakers’ Corner, among your friends or in colleges and universities. Amendment 10 seeks to root the notion of the legal framework in which we are considering freedom of speech in that broader English common-law tradition. I see a relatively clear contrast between the two, which is why I had no hesitation in supporting Amendment 10. I am happy to acknowledge the discussions I had with the noble and learned Lord about it before he tabled it.
It seems that the Government are not taking either of those clear choices. They have come up with a third option, which frankly I regard as a little bit of a muddle. In the first place, it seeks to root the legal framework within which we are to understand freedom of speech in Article 10, but it refers specifically to Article 10(1).
As the noble and learned Lord said, Article 10(1) is perhaps the positive part of Article 10. It is the part that goes out and says, “Freedom of expression is very important and has to be protected”. It is paragraph 2 of Article 10 that goes on:
“The exercise of these freedoms”
and so forth
“may be subject to such formalities, conditions, restrictions or penalties”
for various purposes, which it then lists. I will not detain the House by reading them out, but it is the restrictive part.
There is no mention of the second part of Article 10 in the Government’s amendment. Ministers with whom I have had the benefit of discussions about this, for which I am grateful, have said to me that it is clear they intend this to be a freedom which is consistent with what I have described as the English common-law tradition of freedom of speech. That brings me to the question: if that is what they mean but they still wish to root it in Article 10, what has happened to its paragraph 2? Does the Government’s amendment mean that paragraph 2 is disapplied in relation to the understanding of freedom of speech as it is to sit in the Bill, following their amendment? As drafted, the amendment is pregnant with paragraph 2, but we do not know whether the birth is going to take place. What is the role of that part of Article 10 in this?
My own view is that the Government have a lot of explaining to do on this late amendment to try to make clear to your Lordships what is being achieved. If this is the right means of achieving it and their intention is to have a broad understanding of freedom of speech, why are they rooting it in Article 10 in the first place and what has happened to the second part of that? Would it not be much better if my noble friends on the Front Bench simply opted for one of two amendments tabled by the noble and learned Lord, ideally Amendment 10?
Baroness Garden of Frognal (LD)
My Lords, from these Benches we very much welcome the government amendments in this group. We consider that “opinions” is a much safer term than “beliefs or views”. We also welcome Amendment 7, which aligns freedom of speech more closely to other conventions. I am afraid that I do not have the legal knowledge to discuss the views of the noble Lord, Lord Moylan, on whether paragraph 2 should be there.
However, we support the other amendments in the names of the noble Lord, Lord Collins, and the noble and learned Lord, Lord Hope. We are also very pleased that the Minister has signed Amendment 6, which should help to protect freedom of speech and well-being on our campuses. We realise it is unlikely that the other amendments in this group will go any further; meanwhile, we thank the Ministers very much for listening.
Lord Collins of Highbury (Lab)
My Lords, I thank the noble and learned Lord, Lord Hope, for introducing this group. When we were discussing these points in Committee, what prompted me to support him was how we should try to future-proof this legislation, particularly where there was speculation about human rights definitions and things that might lead to other changes. I therefore also welcome the Government’s own amendments. They are extremely helpful, and we welcome them in relation to this issue. I must admit that I am quite happy to support a third way. It has been part of my political tradition to do so, so I will support that.
I come to Amendment 6 in my name. We had an extremely positive exchange about how we protect these freedoms and stop a nasty practice of non-disclosure agreements inhibiting free speech. I am extremely pleased that the Government have signed the amendment and agreed to support it. I also appreciate all the discussions I have had with the Minister, whom I thank very much.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, I would like to address the group of amendments concerning the free speech duties. As your Lordships have already noted, we had an important debate on these issues in Committee which sought to bring clarity and consistency both to the definition of freedom of speech and what the Government mean by “within the law”. Our amendments seek to address the first of these points. I hope that my remarks will cover the latter. I am disappointed that my noble friend Lord Moylan still thinks we are muddled on this issue; I will do my best to bring a little clarity.
Amendment 7 amends the provision in new Section A1(11), which currently sets out what freedom of speech as referred to in this Bill includes. The amendment refers to the
“freedom to impart ideas, opinions or information …by means of speech, writing or images (including in electronic form)”.
This wording is derived from Article 10(1) of the European Convention on Human Rights, which is also used in the Bill of Rights Bill. This was a particular concern of the noble and learned Lord, Lord Hope. There is also a reference to Article 10(1) of the ECHR as incorporated by the Human Rights Act 1998. This has been carefully drafted to reflect the fact that the freedom of speech in this Bill is a broader concept than freedom of speech in Article 10 because students’ unions are not public authorities and are not subject to the ECHR.
The other amendments are consequential. For example, they refer to “ideas or opinions” in certain provisions rather than “ideas, beliefs or views”. That is to reflect Amendment 7 and is not intended to change its meaning. I will comment on the phrase “within the law” when I respond to the noble and learned Lord’s Amendment 10.
As your Lordships are aware, these amendments are in response to Amendment 1, which was moved and eloquently explained by the noble and learned Lord, Lord Hope of Craighead. This is similar to our amendments, but we have some issues with it. The wording is from the Bill of Rights Bill, but this amendment would cause difficulties if inserted into this Bill. First, as I have already said, it is not right regarding the application of Article 10 to students’ unions. Secondly, it refers to the “right” to freedom of speech, which would lead to new Section A1(2), a duty to take steps to secure an individual’s freedom of speech—by which we mean the exercise of that freedom—instead being a duty to take steps to secure an individual’s right to freedom of speech. This is not what is intended in the Bill.
Regarding consistency with the Online Safety Bill, that Bill does not refer to freedom of speech but rather to the wider concept of freedom of expression. My sense was that the noble and learned Lord is not planning to press this amendment. I hope he will accept that the government amendment answers his concerns and those of the other signatories to Amendment 1.
Amendment 10, also tabled by the noble and learned Lord, seeks to define “within the law” as regards freedom of speech under the Bill. This Bill does not change an individual’s right to freedom of speech. That right is established in common law and under Article 10 of the ECHR, as incorporated into UK law by the Human Rights Act. People are free to say what they want, so long as their speech is not prohibited under the law. As the noble and learned Lord explained, the right to freedom of speech is a qualified right, meaning that, for example, there is no right to incite racial hatred or to harass others. I am aware that my noble friend Lord Moylan is concerned that freedom of speech is perhaps becoming more qualified by some of the restrictions set out in Article 10(2) but that is beyond the scope of this Bill which does not change how Article 10(2) applies.
This Bill does not change what is or is not lawful under UK law; that is for other legislation to do. The reference to
“freedom of speech within the law”
in new Section A1(2) simply means freedom of speech that is lawful. It might be helpful to note that we do not understand there to be a legal duty
“to respect the rights of others”,
as specified in the amendment.
Lord Hope of Craighead (CB)
My Lords, I am grateful to all those who have spoken in this short debate and, in particular, to the Minister for her explanation.
If I may concentrate particularly on government Amendment 7, it achieves my main purpose in my Amendment 1 to avoid the suspicion that, when you talk about freedom of expression in this Bill, you are talking about something quite different from what is referred to in Article 10 of the convention. The reference here makes it clear that we are talking about the same thing.
Baroness Barran (Con)
I think I heard the noble and learned Lord say “freedom of expression” in this Bill, but I think he meant to say “freedom of speech”.
Lord Hope of Craighead (CB)
Yes—I have got them the wrong way round, as I frequently do. But it does not really matter, because we are talking about the same thing, which is the particular problem that I was concerned with.
I have great respect for the noble Lord, Lord Moylan, with whom I had a very deep and interesting discussion. I must confess that I do not have the same concern as he does about the reference to Article 10(1) only in the definition that the Government are proposing. If we read on beyond that reference, it says
“Article 10(1) of the Convention as it has effect for the purposes of the Human Rights Act”.
The way in which you work out its effect is to read on to paragraph (2). I therefore think that, in short and very subtle terms, it achieves the very point. I do not really agree with the noble Lord’s concern, which I think is met by those particular words “as it has effect”.
For these reasons, and with thanks to the Government for their willingness to come forward as far as they have done, I withdraw Amendment 1.
Baroness Barran
Member’s explanatory statement
This amendment is consequential on the Minister’s proposed new definition of “freedom of speech” (see the amendment to Clause 1, page 2, line 36 in the Minister’s name).
Member’s explanatory statement
This amendment is consequential on the Minister’s proposed new definition of “freedom of speech” (see the amendment to Clause 1, page 2, line 36 in the Minister’s name).
Baroness Fox of Buckley
“(c) to express opinions about the registered higher education provider, including opinions concerning—(i) the content of any curriculum adopted by the provider, and any decision taken by the provider regarding such content, and(ii) any affiliation between the provider and a third-party organisation that concerns teaching and research at the provider, or questions of public interest,”Member’s explanatory statement
This amendment seeks to ensure that the Bill upholds international standards of academic freedom by protecting academics’ freedom to express freely their opinion about the institution or system in which they work (UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel in 1997 and Russia v Kharlamov).
Baroness Fox of Buckley (Non-Afl)
My Lords, the purpose of Amendment 4 in my name is that the law should recognise that one of the key chilling aspects of exercising academic freedom in contemporary times is when higher education institutions—via their HR departments, senior management or brand enhancement initiatives, or when they are advised by PR consultants—sign up to third-party organisations that set targets, codes and charters which, in effect, impose demands, often on the curriculum, research priorities and academic content of academic life, that are determined not by the demands of the discipline or scholarship but by fashionable external ideological diktat. In these instances, academics need to know that the law protects them if they challenge and/or defy such demands. This therefore requires us to recognise that academics can criticise their own institutions. This is about encouraging not gratuitous criticism but a defence of the autonomy of scholarship to define what is taught.
Since we have started deliberating the Bill, many have expressed reservations about this legislation as a threat to institutional autonomy by government interference. However, universities cannot be effective self-governing communities if they use institutional management power to silence internal criticism of their governance. Universities putting their own house in order is one thing, but, if they start adhering to external bodies and signing up to bureaucratic, top-down edicts, the academy as a self-governing community of scholars is threatened, as is scholarship itself.
What happens when highly contentious ideology begins to influence teaching and research and when the pressure of consensus and being on the right side makes dissent more difficult than usual? Academics dissenting from some of these ideological interventions, with legitimate concerns about their discipline being interfered in and even about the concept of what a university is for, should know that the law will protect them if they speak up and contribute to the debate.
When I was considering this issue, I recognised from my time in this place that noble Lords like nothing better than an international legal example to bolster their concerns. I have not usually relied on this, but I thought I would provide some international legal precedent. The Strasbourg court has consistently affirmed academic free expression as a fundamental right, and, in around eight Strasbourg cases concerning academic free expression, one principle has been particularly consistent: academics must be free to voice their opinion about their university. The 2016 Kharlamov v Russia case concerned a Russian physics professor who was sued for defamation by his university after criticising its leadership at an all-staff meeting to elect a new academic senate. The Strasbourg court found in his favour, saying:
“The principle of open discussion of issues of professional interest must … be construed as an element of a broader concept of academic autonomy which encompasses the academics’ freedom to express their opinion about the institution or system in which they work.”
All the cases brought to Strasbourg implement the influential 1997 UNESCO Recommendation Concerning the Status of Higher-Education Teaching Personnel, which was the subject of an amendment by the noble Lord, Lord Triesman, in Committee. The recommendation states:
“Higher-education teaching personnel are entitled to … freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies.”
It goes on to make the key point:
“Higher-education teaching personnel should not be forced to instruct against their own best knowledge and conscience”.
I will use a couple of examples to illustrate why I think this is an issue now, rather than just an abstract principle. The examples I will give relate to the popularity of critical race theory on university campuses. I do not want us to focus on what we think about CRT in particular, and I stress that the vast majority of lecturers have no truck with racism, even if they are critical of a particular brand of anti-racism, such as CRT. When higher education institutes sign up to organisations such as Advance HE’s race charter, one of the new issues they face is that they have to adopt a particular and contested view of race. Advance HE states that
“universities are institutionally racist spaces that have had a historic role in producing the knowledge that racism is based on”,
and, therefore, it demands that educational practice be “decolonised”.
In fact, we have seen this happening recently. A diversity drive by the Welsh Government is putting pressure on universities to decolonise courses. The devolved Government want HE providers to achieve a “race equality charter mark”, a score that grades organisations on their diversity and inclusion policies, as part of a plan for an anti-racist Wales. The Higher Education Funding Council for Wales has made £3 million of public money available to help universities pay companies and providers to score them on racial equality, as decided by Advanced HE, which urges a rethink on all subject matters and courses. I am worried that that puts pressure to review curriculums in line with Advanced HE’s decolonisation guidance.
Meanwhile, the Quality Assurance Agency for Higher Education, which advises universities and monitors the quality of courses, now uses CRT recommendations to say that we should decolonise 25 fields of study—noble Lords will have read about this in the newspapers. I was particularly interested in psychology. Apparently, psychology courses are
“historically based on research and theory from homogenous white, educated, industrialised, rich and democratic countries and do not represent diverse voices and contributions to the discipline.”
Some people I know who work in psychology and who argued against this were promptly recommended to go on an unconscious bias training scheme—so my concern is that there are consequences.
When the University of Oxford’s Faculty of Music decolonised its curriculum in response to student pressure, the university itself sought to forbid criticism of the new curriculum. With this law, we have to ensure that academics are free to speak up in this ideological hothouse atmosphere to say that they disagree according to their own expertise and conscience; for example, if they want to say that decolonisation is misguided and malicious.
I will give one more example, which is about the Architects Registration Board, a statutory body that is mandated by the Government to respond to legal and regulatory changes for architects to become architects. It is perfectly right that it wanted to change the curriculum to fit in with fire safety regulation and building regulation that has been passed here. However, the Architects Registration Board got rather carried away with itself and decided that it would use this opportunity to tell all architecture departments that any undergraduate or postgraduate degree or professional diploma must, for example, show:
“The importance of advocating for sustainable or regenerative design solutions … The relationship between social sustainability, social justice and environmental sustainability … How to design … to integrate and enhance natural habitats which encourage biodiversity”,
and so on. The point I am making is that you cannot become an architect now unless you sign up to that, so architects who are trying to assert their academic freedom come up against these third-party bodies which say that this is the only way that students will be allowed to graduate.
With Amendment 4, I simply want the Bill to recognise that there are new threats to academic freedom—quiet and silent threats, as it were—when it comes to academics being able to say that they disagree or agree with values that are imposed on them by institutions trying to make their name as doing the right thing. However well intentioned, I am afraid that it is a real threat to freedom. I therefore beg to move my amendment.
Lord Wallace of Saltaire (LD)
In speaking to my Amendment 5, I shall comment briefly on the previous speech. In all my experience of universities, the problem has usually been getting academics to stop disagreeing with each other, rather than their agreeing with each other and being scared to differ. I do not recognise the picture the noble Baroness has painted. In the universities I keep in touch with, and certainly in the case of the London School of Economics, it has been rare for any department—except the economics department—to have a clear consensus that we were not allowed to dissent from. In that case, the consensus was not a left-wing one, and I am afraid it probably still is not.
Lord Moylan (Con)
My Lords, I do not think I have said this before in your Lordships’ House, but I stand in almost constant awe of the noble Lord, Lord Wallace of Saltaire, because many years ago when I left university and joined the Foreign and Commonwealth Office, his book, The Foreign Policy Process in Britain, was, if not quite mandatory for those of us joining, then certainly highly recommended. I read it with great attention and I hope I learned much from it, both theoretically and to practical effect. I have been here in your Lordships’ House for over two years and I have never actually had the chance to say that I am slightly in awe of the fact that the very William Wallace who wrote that book is here and makes such a huge contribution to your Lordships’ House and, indeed, to my life.
I have not risen to speak predominantly to the amendment standing in the noble Lord’s name, but rather to the earlier amendment. However, I shall just say that the rosy picture he paints of academics happily getting on together, disagreeing on theoretical matters of physics and generally not hindering each other’s promotion, advancement or job prospects in any way is, I am sure, in many ways an ideal and one we should fight for, but is difficult to recognise in an age when we have seen professors effectively forced out of their jobs because they have views that are not sufficiently pro-trans or whatever. It is hard to imagine, even in a science department, how somebody could question or advance research that challenged some of the bases of climate science. In saying that, I am not suggesting that I have any reason for bringing forward such science, or that there is such scientific evidence, but, theoretically, were it to come forward, how would that affect somebody’s job prospects or their chance of securing academic grants and so forth? It is those realities, and I do regard them as realities, that the amendment in the name of the noble Baroness, Lady Fox of Buckley, seeks to address.
The wording of the noble Baroness’s amendment is, as I am sure noble Lords recognise, taken directly from various findings of case law of the European Court of Human Rights, the Strasbourg court. Case law in the Strasbourg court undoubtedly defends strongly the principle that, in a university, those who are employed by it, especially those in an academic role, have an absolute right to criticise the university, the university authorities, its conduct and its policies. So, the only objection, in my view, that can be raised to the noble Baroness’s amendment is that it is otiose—we do not need it because the right is already there and can be appealed to, so why do we need it in the Bill? The argument for putting it in the Bill, in many ways, is really to demonstrate to university authorities that these rights must be taken seriously.
I have to say that the cases in which these rights have been enunciated and vindicated by the European Court have difficult, and in some cases almost barbarous names. They tend to come from parts of Europe and Turkey. They are cases such as Erdoğan, Sorguç, Aksu, Kula, Kharlamov, which the noble Baroness referred to, and Ayuso Torres. They are not names or cases that trip easily off the tongues of the lawyers engaged by the majority of British universities to advise them on how to conduct the issues of free speech. Whereas the Equality Act, the Prevent duty and the Public Order Act are pieces of legislation with which those lawyers are very familiar indeed, and much more accessible to them. So, in defending free speech, there is a natural bias—the tension, if you like, that was at the heart of the debate on the earlier group—among those giving legal advice to universities and those receiving that advice, to pay attention to the legislation that has a tendency to restrict freedom of speech, rather than the European convention case law that defends and vindicates it.
The argument for the amendment from the noble Baroness is that it is not otiose to include it; these rights exist already but they need to be referred to and universities need to be reminded of their importance. Therefore, the amendment should stand. It is hard to know what I want to hear from the Front Bench in response, but I very much hope that my noble friend can say that the rights expressed by the noble Baroness are crucial and will be defended, and that the Government intend to ensure that the Office for Students does so. However difficult of access they may be, they none the less form a proper basis for the conduct of universities, by contrast to and in tension with the legislation, which restricts free speech.
Baroness Royall of Blaisdon (Lab)
My Lords, I remind noble Lords of my interests in the register. I celebrate the fact that the European convention and the Human Rights Act are being cited all over the Chamber today. That is wonderful.
I noted what the noble Baroness, Lady Fox, said about the music faculty at Oxford University. I do not recognise the aspersions that she was casting and will ensure that noble Lords are aware in due course of the situation as it stands. I certainly do not recognise that the university sought to stifle criticism of whatever the music faculty did. I will seek to clarify that with the Minister in due course.
Lord Patten of Barnes (Con)
I will add to the comments of the noble Baroness, and declare an interest as the chancellor of a moderately well-known university.
A university does not need legal advice in this case to defend freedom of research or expression; all it has to do is stop its subscription to the QAA—the Quality Assurance Agency for Higher Education—which only recently produced advice on the curriculum which was like a parody of an article in the Daily Mail. Among other things, it included the decolonisation of not just music—I entirely endorse what the noble Baroness has just said—but the maths curriculum. Clearly, the people who wrote it had never heard of Arabs, Indians or the Mayan civilisation, which was doing advanced mathematics before Christopher Columbus arrived. All that any university has to do is what Oxford has done—withdraw its subscription to the QAA, which is now pretty well on its last legs anyway. I regard the QAA’s advice to universities as in many respects the most dangerous assault in the last few years on freedom of expression and research at universities. It is crazy time—it is critical race theory canonised. Universities should denounce it with great enthusiasm.
Lord Hunt of Kings Heath (Lab)
My Lords, the noble Lord raises a very important point, but is it not the case that many public institutions—including, I am afraid, this House in the past—have signed up to various highly controversial charters and indexes which require a standard of behaviour from the people covered by those institutions? At a national level, many of these bodies are cowed by aggressive minority interests into establishing and setting out these programmes.
For an individual employee working in those situations, it can be very intimidating to say, “I don’t agree with the Stonewall equality index and don’t see why my institution has signed up to it”. I am glad to say that this House, after a lot of pressure and with weasel words, eventually decided not to continue its membership, but many other organisations vie to have a high rating from it. That leads to behaviour and conditions in which it can be very intimidating for individuals who do not agree with the view taken. This is what this issue is really about and why it is so important. I hope the Minister will be very forthright in response.
Lord Collins of Highbury (Lab)
I will be very brief. There is a danger of this debate widening out too far. In Committee, I advocated to the Minister the UNESCO definition of academic freedom. Of course, there is always that confusion between academic freedom and freedom of speech. I was assured by the Minister in Committee, so I was satisfied with what the Government were saying. I hear what the noble Lord says about quality, but standards of teaching and research are a very important element of our universities; we should not forget that. We should not promote one argument and then undermine the very thing that our universities are very popular for globally. We do not support this amendment. We agreed with what the Minister said before and I look forward to his response today.
Earl Howe (Con)
My Lords, as we have heard, the amendments in this group relate to the important issue of academic freedom. I turn first to Amendment 4, tabled by the noble Baroness, Lady Fox of Buckley, which seeks to amend the definition of academic freedom set out in new Section A1 to make it explicit that academics can voice opinions about the institutions where they work, without fear of adverse consequences.
In responding to a similar amendment tabled in Committee by my noble friend Lord Strathcarron, to which the noble Baroness also put her name, I clarified, as the noble Lord, Lord Collins, kindly mentioned, that the definition of academic freedom as currently drafted already covers the questioning and testing of received wisdom, and the putting forward of new ideas and controversial or unpopular opinions. This speech is not limited to particular subjects, so it would include speech concerning the institute at which an academic works. The Bill will therefore already protect the freedom of academics to put forward opinions about the curriculum content adopted by their provider or third-party organisations with which the provider is affiliated.
As the noble Baroness highlighted, there is a reference in the explanatory statement to the UNESCO recommendation. It may be helpful for me to put on record that the Bill as drafted protects academics in a number of the ways listed in that recommendation. Specifically, it protects the rights to freedom of teaching and discussion; freedom in carrying out research, and disseminating and publishing the results thereof; freedom to express freely their opinion about the institution or system in which they work, as I have already said; and freedom from institutional censorship. However, the Bill does not cover conduct which is not speech, such as the act of affiliating with or joining an organisation.
The noble Baroness also referred to the 2015 case of Kharlamov v Russia, and I can confirm the essential features of the case that she set out. Mr Kharlamov was a physics professor who said during a conference that he was unhappy with the nominations process for candidates to the academic senate. The university sued him for defamation. The European Court of Human Rights in due course found in his favour on the basis that the Russian courts failed to fairly balance the relevant interests and establish a pressing social need for protecting the university’s reputation over the claimant’s freedom of expression. I hope that, in the light of what I have said, noble Lords are reassured that this amendment is not in fact needed.
Amendment 5 tabled by the noble Lord, Lord Wallace of Saltaire, seeks to probe the workability, as he put it, of new Section A1(7)(b) in Clause 1. Taken at face value, it would amend the definition of academic freedom so that it would no longer specify that an academic should not be put at risk of a reduced likelihood of their securing promotion or different jobs at the provider. I realise that it is a probe. It is correct that this provision is not included in the existing legislative definition of academic freedom in the Higher Education and Research Act 2017 and the Education Reform Act 1988. However, we want to be clear in the Bill that academic staff should be protected in as expansive a way as possible—so not only from losing their job or privileges, but from being less likely to secure promotion or a different job at the provider. If we do not specify that these are also covered, there may be only partial protection. A person might not be fired but might be held back in their career, by not being promoted or given another role at the provider because of something they have said.
As I mentioned, the noble Lord wants to know how this provision will work in practice. An academic will of course need some evidence to support a complaint that they have been wrongly held back because of their views. They may have been told by a colleague the reason why they have not been promoted. There may be notes from an interview that suggest why this is the case. There may be an email which makes this clear. In the face of such evidence, the question will then be whether the provider has failed to comply with its duties under the Bill. I note the noble Lord’s point about the OfS guidance and I will ensure that the OfS also does so. This is the way that evidence in employment law is often presented. It is not new, nor is the concept of protection from not being promoted, since that can be a matter leading to constructive dismissal, which has been a feature of employment law for some time.
I hope that this explanation reassures the noble Lord that this is an important aspect of academic freedom in the context of freedom of speech, and that he agrees that the provision will protect academic staff to the fullest extent.
Baroness Fox of Buckley (Non-Afl)
I really appreciated the comments of noble Lords in this short debate. I want to stress a couple of things. This is not about the rights and wrongs of any particular examples I gave; it is perfectly legitimate if people want to support decolonisation or critical race theory, for example, but the point is that it is not imposed. I am also concerned about an ideological conformity that stifles the sort of professional exchanges that the noble Lord, Lord Wallace of Saltaire, was advocating.
I was bemused when the noble Lord suggested that I was almost stuck in some social science nightmare. As the noble Lord, Lord Patten, pointed out, it is precisely the fact that this has now been extended into the hard sciences that may wake up even the noble Lord, Lord Saltaire, to the problems, as perhaps he should look quite closely at the decolonisation of physics, computing or mathematics. The noble Lord, Lord Patten, was right when he said, “Why does everybody not just leave the QAA?” In many instances during the discussions in this House, people talk as though we all run colleges. The problem is, if you are an academic in a college where the college vice-chancellor or principal does not resign from the QAA but rather likes it or cites it, what do they do? I hope everybody tears up their QAA membership because of this, but what if they do not?
The noble Lord, Lord Hunt of Kings Heath, really explained what is at stake here. I was avoiding mentioning Stonewall but, in a way, that is what got me interested in this very thing. It has become compelled speech for individual academics who are told that because of the institutional values that the university has signed up to—for example, around the compulsory use of pronouns and/or a particular attitude to biological sex versus trans identity rights, and so on—if you do not agree, you are open to being accused of bigotry and sent on mandated courses. I was not joking; individual members who criticised the music decolonisation were indeed put under huge pressure by people at the university to go along with this. I said “the university” but I do not always understand the institutions and it is fair enough if the noble Baroness, Lady Royall, wants to correct me.
I will finish with this point. I mentioned the Architects Registration Board. We are in a situation whereby a statutory body that the Government are involved in says that all architecture academics must teach all levels of architecture the realities of the ecological crisis. That is a national curriculum by the back door. It is a difficulty that has to be recognised. I want to take the reassurance of the Minister, who said, “Don’t worry, it’s all taken care of”, but, as the noble Lord, Lord Moylan, explained, references to and uses of these international examples can only strengthen the message, with which the Minister seems to agree, about the legal obligations on university management not to allow these kinds of things to get in the way of academic freedoms. It would be a great reassurance to individual academics to know that this is what the Bill wants to do and to see it spell it out. What harm could it do?
Although I will withdraw my amendment at this point, I do not want the Minister to become complacent. This is a really big, serious contemporary issue that must be taken on board by the Government—indeed, whoever is in government.
Lord Collins of Highbury
“(10A) In order to achieve the objective in subsection (2), the governing body of a registered higher education provider must secure that the provider does not enter into a non-disclosure agreement with a person referred to in that subsection in relation to a relevant complaint made to the provider by the person (and if such a non-disclosure agreement is entered into it is void).(10B) In subsection (10A)—“non-disclosure agreement” means an agreement which purports to any extent to preclude the person from—(a) publishing information about the relevant complaint, or(b) disclosing information about the relevant complaint to any one or more other persons;“relevant complaint” means a complaint relating to misconduct or alleged misconduct by any person;“misconduct” means—(a) sexual abuse, sexual harassment or sexual misconduct, and(b) bullying or harassment not falling within paragraph (a).”Member’s explanatory statement
This requires the governing body of a registered higher education provider to secure that the provider does not enter into certain non-disclosure agreements (and as a result of new section A4 of the Higher Education and Research Act 2017 inserted by section 2 of the Bill this will also apply to the governing body of constituent institutions).
Member’s explanatory statement
This amendment proposes a new definition of “freedom of speech” referring to the European Convention on Human Rights, as it has effect for the purposes of the Human Rights Act 1998.
““the Convention” has the meaning given by section 21(1) of the Human Rights Act 1998;”Member’s explanatory statement
This amendment defines “the Convention” for the purposes of the Minister’s proposed new definition of “freedom of speech” (see the amendment to Clause 1, page 2, line 36 in the Minister’s name).
““member”, in relation to a registered higher education provider, does not include a person who is a member of the provider solely because of having been a student of the provider;”Member’s explanatory statement
This amendment excludes those who are members of the provider, solely due to having been a student of the provider, from being a “member” of the provider for the purposes of Part A1 of the Higher Education and Research Act 2017.
Earl Howe (Con)
My Lords, government Amendments 9, 12 and 31 are officially classed as “minor and technical” although I would not want to downplay their significance. They will clarify that the term “members” in the Bill does not include a person who is a member solely because of having once been a student of a provider or constituent institution. The term “members” is intended to include those who are not technically staff but are closely involved in university life, in particular members of the governing councils of universities and retired academics who are emeritus professors.
However, the noble Lord, Lord Wallace of Saltaire, tabled amendments in Grand Committee with the intention of probing the meaning of “members” in the Bill; the noble Baroness, Lady Smith, spoke on his behalf. During the debate, several noble Lords expressed concern at the use of the term “without qualification”, as some registered providers and colleges treat their students as members for life. After the debate, my officials looked into the matter and confirmed that this is the position in the case of, for example, the University of Cambridge.
As a result, the Government have tabled these amendments to clarify that alumni of providers and colleges are not covered by the Bill. It is not our intention that providers and colleges should have duties that extend so widely, even to people who have no current relationship with them other than as ex-students. I should make it clear that, if a current student’s freedom of speech is wrongly interfered with, they may still make a complaint even after they have left university. These amendments do not affect that. I am grateful to the noble Lord, Lord Wallace, and the noble Baroness, Lady Smith, for initiating in Grand Committee the discussion that brought this issue to light; I hope the House will agree that these amendments are necessary.
Amendment 24, as tabled by the Government, will distinguish between new functions imposed on the Office for Students by the Bill. It will amend the power in new Section 69A(2), in Clause 5, so that it refers to “how to support” freedom of speech and academic freedom, rather than “the promotion” of these values.
My noble friend Lord Willetts tabled some amendments to Section 69A in Grand Committee. When my officials considered these, it came to light that the wording of this provision might cause some confusion. This is because it refers to
“the promotion of freedom of speech and academic freedom”.
That wording replicates Section 35 of the Higher Education and Research Act 2017, which provides that the OfS may
“identify good practice relating to the promotion of equality of opportunity, and … give advice about such practice to registered higher education providers”.
Lord Grabiner (CB)
My Lords, I have just a very brief point. I welcome, in particular, the amendments brought by the Government in relation to the meaning of the word “member” in this context. That is an extremely sensible development in the drafting of the Bill. All that I would say is that, certainly in Cambridge, there is not simply an adoption of the assumption that alums are known as members, but that fact is frequently recorded in the statutes of the particular college. It may well be worth reflecting this amendment in the code of practice in due course, so that there can be absolute clarity that the Bill makes this important distinction between what the college statute may say and what the legislation says.
Earl Howe (Con)
My Lords, I thank the noble Lord, Lord Grabiner. I think that is an extremely helpful suggestion which I will ensure is duly noted.
Lord Hunt of Kings Heath
Member’s explanatory statement
This amendment, which relates to the code of practice to be maintained by governing bodies, is designed to ensure that in their duty to take steps to secure freedom of speech the code of practice must cover measures to be taken to ensure that a person is not prevented from speaking by attempts to drown out or silence a speaker.
Lord Hunt of Kings Heath (Lab)
My Lords, I will move Amendment 11 and speak to Amendments 15 and 25, alongside my noble friend Baroness Morris. I also want to speak in support of Amendment 16, being moved by my noble friend Lord Collins. We will shortly come to a very important debate on Clause 4. It seems to me, whatever the outcome of that debate, that at the end of the day and at the heart of the Bill, we are trying to encourage behaviour in our universities which will ensure the freedom of speech that noble Lords have spoken about. I think that it is the codes of practice that will have a pivotal role in ensuring that, backed up by whatever sanctions we eventually decide are necessary, whether we have Clause 4 or not.
I will focus on the codes of practice that each university—and each student union—has to agree to. The OfS is enabled to ensure that those codes of practice are acceptable within the terms of its overseeing of university registration and that they are appropriate to each student union as well. The OfS has a responsibility in the Bill—I think it is a very good responsibility—to publish good-practice advice. I see this as a wholly constructive approach, encouraging the best behaviour you can expect within those institutions.
The concern that my noble friend and I raised in Committee was the extent to which academics and speakers can expect protection in the face of action that is designed to intimidate them and prevent them speaking. We know from the experience of a number of academics—in particular women academics—that such intimidatory action can take the form of open letters demanding that an academic be sacked, vexatious complaints, petitions to publishers demanding that work be withdrawn, campaigns of defamation, smears, demands to prevent an academic being platformed, attempts to prevent events going ahead by threatening trouble if they do, and disrupting events that do go ahead. As I said, the targets of these tactics typically are women academics.
I say to the noble Lord, Lord Wallace of Saltaire, whom I respect enormously, “Where have you been?”, when there has been such trouble for some academics on many of our campuses. We cannot sweep that under the carpet; it is a reality. Professor Kathleen Stock suffered horrific abuse and her university completely failed to defend her until almost the last moment. That was a graphic demonstration of why this legislation in the end is required.
I was very grateful to the noble Earl, Lord Howe, for meeting us to discuss this. What he essentially said, if I may paraphrase it, is that the Bill will protect the right of speakers to put forward controversial or unpopular ideas, and that it will also protect the right of those who do not agree with them to speak up. I absolutely agree with that. But it should not mean that higher education institutes should simply stand passively by while, for instance, hecklers attempt to disrupt planned events that are lawful.
I have seen it argued that such attempts to silence speakers are themselves a form of free speech. But I think that that confuses the right to protest with the right to silence others. Speech that is intended merely to silence the speech of others, far from contributing to knowledge and learning, surely narrows the scope of the educational sphere.
The amendments we have put forward try to make it explicit that the codes of practice of universities and student unions must cover the measures that must be taken to ensure that a person is not prevented from speaking by attempts to drown them out or silence them. They have become known as the “hecklers’ amendments”.
I would like some assurance from the noble Earl that the OfS in its responsibility for the continued registration of universities and in its oversight and monitoring of student unions will give its attention to this matter and that it understands that the issue will be very important to the success of the Bill. I beg to move.
Baroness Morris of Yardley (Lab)
My Lords, I rise briefly to support this amendment, to which I have added my name. I will try not to repeat everything that my noble friend Lord Hunt said but will emphasise some of his points.
I too was grateful for the meeting with the Minister. It was very helpful, and I think there was a great understanding of our view and of the problems the Government are having with putting this into legislation. I completely accept that the law has to protect both those who wish to express a view and those who wish to express a contrary view. In some ways, as my noble friend said, this is a “hecklers’ amendment”, but we are old enough both to have done some heckling and to have been the subject of heckling in past years. However, most of the time I was heckling or being heckled, it was not with the intent of stopping somebody else being heard; that is the crucial point.
Universities should be places where there is freedom to put forward a view and freedom to oppose it. I would never want a law of silence, where somebody’s view has to be listened to in silence. If there is an intention to make sure that the opposite point of view, which is legally held, is not heard, that is not the purpose of universities in this country. It never has been and it never should be. There are too many examples of that border being crossed.
Professor Stock has received a lot of publicity and rightly so—she felt obliged to lose her job. However, I have worked with academics who express an interest in sex and gender, and maintain the view that sex is a biological thing and that that should govern the law, and their lives have been made a misery. It is a long time since I have been to a university and talked to academics expressing that view when they have not told stories about it being miserable to be an academic because there is not the environment in which they can openly express their views. They are not people who want to impose an alternative point of view; the idea of putting forward a view is to engage in debate, not to make others say, “Yes, you’re right. Let’s move on.” Engaging in debate is at threat.
I can see that it is difficult to put that into law. It would be impossible; we would be here all day. I hope that putting this into the code of practice gives a clear message to the leaders of our universities that they have to take action, because, quite frankly, some vice-chancellors have not been doing their job on this. They have hidden quietly for too long and not stood up to protect their academic colleagues when they should have done. If that message can go forward in the code of practice, we might begin to reverse this tide.
Lord Macdonald of River Glaven (CB)
My Lords, I do not oppose this amendment at all. I can see why it might be possible for material relating to this issue to be included in codes of practice. However, it is worth observing that a lot of the behaviour described by the noble Lord, Lord Hunt of Kings Heath, is patently criminal. It is a great shame that universities, colleges and other authorities do not always appreciate that.
As I said in Committee, a group of masked men letting off flares and shouting threats and abuse about a professor of philosophy inside her workplace is conduct that, in my view, is properly characterised as criminal. It is a great shame that the University of Sussex or other relevant authorities did not see it that way.
Lord Lucas (Con)
My Lords, I am thoroughly with the spirit of this amendment. I have a child currently at university and I know that it is about not just the speaker, but the effect this has on the students. It becomes impossible to discuss anything when you expect to be shouted down. That is far harder for a student at a university to take than it is for a visiting speaker. Universities have to get this right.
In my youth, the extreme right openly contended with Maoists in the junior common room. It was debate. They argued in debate. To shut that down now is to tell students that they are not allowed to express their own opinions. That makes a university pointless. Universities have really not stood up for the purpose of universities, in a way that I hoped they would.
Lord Grabiner (CB)
My Lords, I agree with the comments and observations made by the noble Lord, Lord Hunt of Kings Heath, the noble Baroness, Lady Morris of Yardley, and others on this amendment. But I do not support it, simply because I think this is an extremely good example of something that needs to be dealt with carefully in the code of practice. A clear distinction should be made between what one might call a genuine heckle, as opposed to an attempt to drown out or silence a speaker.
I well remember that when I was an undergraduate at the LSE—donkeys’ years ago now, I fear—the history society very unwisely invited the National Front to come to give a presentation. We filled the room out very fully before these people arrived. When the chairman of the National Front, with two or three hoods in close association with him, walked into the room, one heckler shouted out, without any intention to drown out what was about to happen, “Have you been circumcised?” It really brought the house down, and it destroyed the speaker. A good heckle is well worth preserving, but I think it should be dealt with in the code of practice and definitely not in primary legislation.
Baroness Altmann (Con)
My Lords, I rise briefly to echo the points made. I think the spirit of these amendments is important for the safety and success of our university system, but this should be dealt with in the codes of practice. It should not be beyond the abilities of the university authorities to distinguish between criminal activities, such as letting off flares or whatever, and the genuine heckling and expressing of strong opinions which is part of the free speech debate. It may be that the university authorities in some cases have not always succeeded in that, but even with primary legislation, if there were such failures, it is not clear that the legislation would prevent that. I think that robust codes of practice, making clear the difference between stifling free speech and merely expressing opinions, are very important.
Lord Triesman (Lab)
My Lords, I want to make a brief point, because I know that everybody wants to make progress, but free speech is also important. I could well understand a code of practice of this kind, and I too am very grateful to the Minister for discussions on this. A code of practice can make a difference to the way in which societies that are part of a student union or student unions understand what their responsibilities are. I am not sure that they always understand what the criminal law does or does not say, and it is certainly the case that some of the institutions within universities that used to play significant role, including the union of which I had the privilege of being the general secretary, do not understand it any more and do not apply it any more in an appropriate way, and that itself is a significant problem. I am horrified by that.
However, I would like to know from the Minister that the codes of practice will also tell individuals what they are or are not expected to do. By and large, we construct our law—there are lawyers here who will tell me if I am wrong—so that individuals know what their responsibilities are and do not simply say that they are hiding behind some kind of collective. It is their responsibility. Academic freedom is based around individuals understanding their duties and responsibilities just as much as any of the groups. If we want this to work, it is vital that we do not lose that distinction.
Baroness Garden of Frognal (LD)
My Lords, these amendments all refer to student unions. We have been concerned about the rather heavy-handed approach to student unions in the Bill. Amendment 16, to which my noble friend Lord Wallace has added his name, seeks to ensure that student unions are fully aware of the regulations with which they must comply. We are particularly concerned in connection with further education student unions, which are likely to be very small and have very few funds available. Presumably they are included in the Bill. The regulations are complex and students will obviously be transitory in post, so simplicity of guidance is essential if they are not to find themselves caught up in unwittingly breaching the rules, as the noble Lord, Lord Triesman, has just set out. This amendment would be a very straightforward way of helping students, and it would be very easy to adopt.
Like others, we support the intention of Amendments 11, 15 and 25 but we remain unsure about how they could be implemented. As the noble Lord, Lord Macdonald, said, some of these actions may well be criminal behaviour, in which case they do not need to be part of the Bill because they should be something else. I liked the tale told by the noble Lord, Lord Grabiner. There are other ways of dealing with hecklers, and ridicule is often one of the very best. We do not see that these amendments should be in the Bill, but some code of practice or regulation would probably be worth it. However, Amendment 16 is well worth government consideration.
Baroness Thornton (Lab)
My Lords, we have had a thorough exploration of the issues that would face student unions as a result of the passage of the Bill. Amendment 16 in the names of my noble friends Lord Collins and Lord Blunkett and me, with the support of the noble Lord, Lord Wallace of Saltaire, is not intended to be patronising. It seeks to ask the Government whether they will ensure that the guidance to student unions gives young people all the help and support it can to carry out the duties and responsibilities that the Bill will impose on them. Some of them will be 17, 18 or 19 years old, and this will be something they are absolutely unfamiliar with. That is really all that one needs to say about Amendment 16.
I agree that Amendments 11, 15 and 25 are probably not appropriate for the Bill. As somebody who has been a moderately successful heckler myself, I think they certainly should not be in the Bill.
Baroness Barran (Con)
My Lords, I will address this group of amendments relating to codes of practice and the guidance under the Bill. I thank all noble Lords for their thoughtful and considered remarks.
Amendments 11 and 15 tabled in the name of the noble Lord, Lord Hunt of Kings Heath, would require higher education providers, colleges and student unions to include in their codes of practice specific measures
“to ensure that a person is not prevented from speaking by attempts to drown out or silence a speaker”.
Amendment 25 would require the Office for Students to include in any guidance it issues under new Section 69A, in Clause 5 of the Bill, guidance on such measures.
The purpose of the Bill is to protect freedom of speech within the law. As part of that freedom, individuals have the freedom to speak on topics of their choice, as well as to engage in peaceful protest against such speech, as the noble Lord clearly stated. These aspects of freedom of speech both need to be protected. The Bill does not give priority to one individual over another. This means that providers, colleges and student unions must take “reasonably practicable” steps to ensure that speakers who are speaking within the law, as well as those who wish to protest in disagreement with those views, are able to speak—and are not, in the noble Lord’s words, forced to stand by passively.
I should be clear that the Bill means protest in the form of speech, writing or images, including in electronic form. It does not include, for example, tying oneself to a railing or blocking a street—activities that are not speech and therefore not covered by this legislation, but are clearly covered by other legislation.
I reassure your Lordships that we expect event organisers to plan for what to do in the event of disruptive protests. The duty to take “reasonably practicable” steps does not mean that such disruption has to be tolerated. In fact, the duty to take such steps, as regards the speaker at the event, means that action should be taken to deal with such disruption. That might mean that security should be provided or that a protest outside a venue should be set back sufficiently from the windows.
The codes of practice are already required under the Bill to set out “the conduct required” of staff and students in connection with any meeting or activity on the premises. I hope that addresses the question from the noble Lord, Lord Triesman, about whether this applies to individuals. These amendments are not necessary as the issue is already covered by the Bill.
Equally, we expect the OfS to consider these practical issues and to provide advice about how providers, colleges and student unions can fulfil their duties, as well as share best practice that they identify—again, a point raised by the noble Lord, Lord Hunt of Kings Heath.
I trust that your Lordships are reassured by what I have said about how the Bill will operate and will agree that these amendments are not needed.
Amendment 16 tabled by the noble Lord, Lord Collins of Highbury, seeks to ensure that clear guidance is issued by the Secretary of State within three months of the passing of the Bill to help student unions to comply with their new duties. The publication of guidance for student unions is already covered by the Bill. Section 75 of the Higher Education and Research Act 2017 is amended by paragraph 9 of the Schedule to the Bill. Section 75, as amended, will provide that the regulatory framework which the Office for Students is required to publish must in future include
“guidance for students’ unions to which sections A5 and A6 apply on their duties under those sections”.
This must include
“guidance for the purpose of helping to determine whether or not students’ unions are complying with their duties under sections A5 and A6”.
The guidance may in particular specify what the OfS considers that student unions need to do to comply with those duties under new Sections A5 and A6, and the factors which the OfS will take into account in determining whether a student union is complying with its duties. It is worth noting that Section 75 requires consultation on the regulatory framework before its publication, and it must therefore be laid before Parliament, giving proper transparency.
In the new regulatory regime that the Bill will establish, including under Section 75, it would be wrong for separate guidance to be published by the Secretary of State rather than the regulator—the OfS. It would also, in practical terms, be too tight a timescale to require publication within three months of Royal Assent. There will be a great deal of work to be done on implementation, including setting up a complaints scheme team, drafting the new complaint scheme rules, drafting guidance, consulting on the changes to the regulatory framework and making those regulations; as your Lordships know, that will take time.
I hope my explanation has satisfied the concerns of the noble Lord and that the House will agree that the Bill deals with these issues appropriately as it stands.
Lord Hunt of Kings Heath (Lab)
My Lords, that has been a very helpful debate and I thank all noble Lords who have taken part. My noble friend Lady Morris suggested that some of us might have taken part in heckling in the past. I have to confess that I took part in one of the first university sit-ins at Leeds University in 1968, when—led by one Jack Straw, who was then president of the Leeds University union—we heckled Mr Patrick Wall, an MP at the time.
The noble Lord, Lord Grabiner, made a very important point about drawing the distinction between quite legitimate heckling and the kind of intimidatory action that we saw taking place in relation to a number of women academics. The noble Lord, Lord Macdonald, is absolutely right: I agree that there are elements of criminal behaviour. The problem is that universities were very weak. I really regret that the Bill has been necessary, but I am afraid that the lack of backbone shown by so many university leaders is why we are here today.
I agree with noble Lords that this is not a matter for primary legislation. Indeed, I am not quite sure how you would ever draft anything like it. We tried in Committee but I think one has to accept that it is not possible. The codes of practice and the oversight of OfS, though, are clearly crucial to the success of this legislation, so this has been a very good debate.
In relation to Amendment 16, I very much hope that the OfS will take note that any guidance it issues needs to be fully understandable by students within the student union. Having said that, I beg leave to withdraw my amendment.
Baroness Barran
““member”, in relation to a constituent institution of a registered higher education provider, does not include a person who is a member of the institution solely because of having been a student of the institution.”Member’s explanatory statement
This amendment excludes those who are members of a constituent institution (eg a college), solely due to having been a student of the institution, from being a “member” of a constituent institution for the purposes of Part A1 of the Higher Education and Research Act 2017.
Earl Howe
Member’s explanatory statement
This amendment is consequential on the Minister’s proposed new definition of “freedom of speech” (see the amendment to Clause 1, page 2, line 36 in the Minister’s name).
Member’s explanatory statement
This amendment is consequential on the Minister’s proposed new definition of “freedom of speech” (see the amendment to Clause 1, page 2, line 36 in the Minister’s name).
Member’s explanatory statement
This ensures that only persons who have sustained loss can bring civil proceedings under the new section A7 inserted into the Higher Education and Research Act 2017 by the Bill.
Earl Howe (Con)
My Lords, the Government have tabled Amendments 17, 18 and 19 in response to an amendment tabled in Grand Committee by the noble and learned Lord, Lord Etherton. These amendments make clear on the face of the Bill what we have maintained is already the case: only a person who has suffered a loss as a result of a breach of the specified duties can bring a claim before the courts. This is not limited to pecuniary loss and could include damage to reputation, for example. I am happy that we can make that clear.
Amendment 20, tabled by the Government, provides that claimants must first have exhausted the complaint procedure of the OfS or the OIA before they can bring proceedings under new Section A7. Both Policy Exchange and the Russell Group have called for an amendment along these lines as a considered and proportionate response. This amendment will mean that a complaint on the same subject must have been made to either complaint scheme, and that a decision must have been made under the scheme on the extent to which the complaint was justified.
If a complaint fails because, for example, it is brought out of time under the rules of the complaint scheme, then the complainant will not be able to bring a civil claim. It is useful to note that the OIA has a deadline of 12 months, so the OfS may have something similar. We think that this outcome is right. Equally, if the OfS or OIA dismisses a complaint without considering its merits because it considers it frivolous or vexatious, as they are entitled to do, the complainant would also not be able to bring a civil claim under new Section A7.
However, I should be clear that, if the complainant is unhappy with a decision of the OfS or OIA which means that they would be unable to bring a claim under new Section A7, then judicial review will be available for them to challenge it. The purpose of Amendment 20 is to make clear what we have always said: the tort will operate as a backstop, since we did not anticipate that many complainants would pursue legal proceedings rather than the free-to-use complaint schemes.
I am therefore happy to make this clear in the Bill on the basis that it will alleviate concerns raised by several noble Lords that the statutory tort will burden universities with dealing with unmeritorious and costly claims, as well as potentially undermine the OfS as a regulator and operator of the new complaints scheme. This point has been made by the noble Lord, Lord Grabiner. On this latter point, I should say that the OfS will undoubtedly welcome case law from the courts, since it will help going forward on its decision-making and formulation of guidance.
I will say more when I sum up. I hope that noble Lords will see these amendments as helpful and as a useful response to the debates we had in Grand Committee. I beg to move.
Lord Grabiner (CB)
My Lords, I thank the noble Earl the Minister and the Minister the noble Baroness, Lady Barran, for the explanations that they have provided in the House, in correspondence and at meetings that we have had. That said, I am afraid that I am still firmly against Clause 4 and believe that the Bill would be improved if it were deleted.
I will not repeat the points I made in Committee, but I summarise my concerns by reference to the Minister’s closing remarks on day 3 in Committee on 14 November, in Hansard cols. 725-30, and the government amendment now before us. My starting position, unlike that of some noble Lords, is that I am in favour of the introduction of the new duties to be imposed on universities, colleges and student unions. The Minister has given many examples of absolutely unacceptable behaviours designed to undermine speech freedom. In short, I agree with the Government that, in light of the developing experience, it is now necessary—unhappily—to enshrine freedom of lawful speech in primary legislation.
We have two very experienced regulators in our higher education system: the Office for Students and the Office of the Independent Adjudicator—the OfS and the OIA. In my view, these new duties should be enforced only by the expert regulators. This would be a natural and logical extension of their regulatory powers and they would bring to bear their specialist expertise in this clearly defined area of educational activity. It is also the case that these regulators are subject to judicial review in the courts. Thus, if the decision-making regulator takes into account irrelevant matters, or fails to take account of relevant ones, or is plainly wrong in law, the complaining party can apply for judicial review. If it is necessary to have what the Minister calls a “backstop”, the judicial review mechanism fits the bill precisely. Given the regulatory and higher education context, I do not believe it is necessary, still less is it desirable, to make express provision giving a civil law cause of action in tort which would enable the claimant to pursue a claim in court against the university, the college or the student union, as the case may be.
In the debates that we have had thus far, it seems to me that three issues have emerged which, taken together, strongly suggest that Clause 4 should be deleted from this Bill. First, I and other noble Lords believe that Clause 4 would be an open invitation to ill-motivated trouble-makers—if the social media is taken at face value, there are plenty of them out there. The trouble-makers would inevitably wish to use the very public platform provided by this new access to the courtroom to advance their own ideological stance.
Secondly, we know that universities and student unions are very poorly funded. We should not be subjecting them to the risk of unnecessary and expensive litigation. That is especially the case when we have an established regulatory structure in the sector.
Thirdly—this point has been made in particular by the noble Lord, Lord Macdonald of River Glaven, but also by other noble Lords—the fact that Clause 4 exists will have a chilling effect on the academic sector. Instead of our universities being places where debate and challenge should constantly thrive, decision-making, for example as to who should be invited to speak and on what subjects, will be inhibited. On the first day in Committee, the noble Earl the Minister pointed out, correctly in my view, that
“there is no right to a platform”.—[Official Report, 31/10/22; col. GC 36.]
That is an important point. It is obvious that college authorities and student unions will bear it well in mind. They will inevitably err on the side of caution and rather anticipate and avoid any risk of Clause 4 litigation simply by not inviting speakers who are or may be perceived to be controversial.
This would produce the very opposite of what is intended by the Bill: lawful freedom of speech will have been denied and we will never know the details. I wonder how many universities, colleges or student unions would invite JK Rowling to speak if Clause 4 were in force. My guess is that they would not invite her. That is a shocking fact and is precisely the result we would wish to avoid.
Ministers have separately sought to justify Clause 4, and I will address the points that have been made on the new government amendment before us. It is said that, in practice, there is nothing in my first issue—the ill-motivated claims point. It is accepted that such claims will be made, but it is said that they will be thrown out peremptorily and that the costs incurred by the university or student union would be recovered from the vexatious claimant. This is pure assertion and speculation. It would not be difficult to formulate a plausible argument that the court would be reluctant to halt at the embryonic stage. Also, if you win, it is never easy to recover your costs: the claimant is likely to be elusive and probably penniless, and the process of seeking recovery is time-consuming and expensive. Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?
Next—this is said to be a key point—the Minister repeatedly describes the new tort as a necessary “backstop measure”. The new amendment takes account of some of the criticisms made in Committee on the Bill as originally drafted. If left as it is, there would concurrently be in place the regulatory procedures as well as the new civil law cause of action, without any rules as to priority or the relationship between the two. The new amendment requires that mediation at the college level and all regulatory procedures should be exhausted before a claimant can use Clause 4. I agree that that clarifies matters, but unfortunately it still leaves us with Clause 4.
The argument now relied on by the Government, off the back of the new amendment, is that the individual claimant should be able to claim damages in court for loss, which could not be done in judicial review proceedings—it is correct that an individual cannot recover damages in a judicial review case. This is interesting, but noble Lords should realise that this represents a significant change of tack by the Government, because the Bill as drafted made no reference at all to losses or compensation. The new amendment gives no definition of loss—it might encompass hurt feelings and financial loss, such as wasted travel expenses and matters of that kind—but it is obvious that we are talking about very small amounts of money.
How do you measure, in financial terms, the damage done to someone whose freedom of lawful speech has been undermined? A judge is not entitled to pick a figure out of the air; there must be a rational explanation for the amount of damages awarded. In my view, there is no substance in the argument that the complainant needs a damages remedy; he, she or it will not be able to prove any serious financial loss. In any event, I suspect that, in the mind of the complainant, damages would not be a top priority; it is more likely that the remedy of a declaration, perhaps coupled with an injunction, would be the aim.
Professor Kathleen Stock has been referred to in relation to other amendments, but I should mention her in this context, in case it is suggested that she is a good example of why Clause 4 is necessary. I have every sympathy for Professor Stock, and I am certain that everyone here also does. From what is publicly known of the case, it looks as though she was treated very badly indeed by her employer, the University of Sussex, and, it seems, by some academic colleagues who should have known better. That said, she could have sued her employers for breach of her employment contract, but, for whatever reason, she chose not to. In the circumstances, Clause 4 would not have improved Professor Stock’s position.
My concern is that Clause 4 will be used by mischief-makers, whereas our real focus in this House should be the effectiveness of the regulatory function in ensuring that these new and important duties are understood, respected and properly enforced. In my view, the supposed financial protection of the individual claimant is a distraction and a sideshow. I believe the Bill would be greatly improved if Clause 4 were deleted.
Lord Moylan (Con)
My Lords, I rise to speak to Amendment 21, standing in my name. It dawned on me, as I said in Committee, that the purpose of some noble Lords was not to improve this legislation that has been passed by the Commons but to eviscerate it. The speech just given by the noble Lord, Lord Grabiner, seems to illustrate exactly that.
One of the few things on which I agreed with my noble friend Lord Willetts in Committee was when he said that there were two powerful elements in this Bill that made a real change, one of which was Clause 4. That is why it is a crying shame that the Government have conceded so much in relation to Clause 4; they have effectively turned it into a shrivelled sausage when it could have been something that actually made a real difference. But even with that concession from the Front Bench, it does not seem to be enough for my noble friend Lord Willetts or the noble Lord, Lord Grabiner, who are insisting that even that pathetic thing be removed and crushed altogether.
A principal argument in favour of Amendment 20, tabled by my noble friend on the Front Bench, is that the Government intend thereby to give the universities an opportunity to resolve the problem through mediation and a complaints system. The difficulty is that, in terms, university authorities have expressed repeatedly the fact that they do not consider that there is a problem: they consider it to be an invented problem, or a problem which, if it exists at all, is rare and egregious and can be handled by the universities. Plainly, there are those of us who feel that the universities have failed to handle it, and need to be brought to book.
If the universities genuinely want to give mediation a chance, Amendment 21, standing in my name, gives them the opportunity to demonstrate that. A similar amendment was tabled in Committee by my noble friend Lord Sandhurst, and it is retabled here—I am grateful to the noble Baroness, Lady Fox of Buckley, and my noble friend Lord Strathcarron for adding their names to it. Amendment 21 would retain the substance of Clause 4 as originally proposed by the Government and approved by the other place, but would give to universities the opportunity in each case to ask the court to stay proceedings so as to allow mediation to take place. It would be at the discretion of the court whether to agree to that. I am sure that, if the court thought that there was a prospect of success in the mediations, it would agree.
This is modelled on legal practice in certain other areas where I understand, for example, that the provision and possibility exist—although noble Lords know that I make no claim to be a legal expert on pensions entitlements and so on. So the principle is a workable one: the university can say, “Please will you stay the proceedings while we exercise mediation”. It preserves the substance of the tort in Clause 4 and gives academics, in particular, an opportunity to make their representations in the way that the Government originally envisaged.
I will address the Government’s proposal, because the proposal being advanced by my noble friend Lord Willetts—who I understand may speak shortly—and endorsed by the noble Lord, Lord Grabiner, is to delete the clause altogether. The Government’s proposal would allow those administering the complaints system to indulge in indefinite delay. There is no time limit by which a decision has to be reached in this amendment. My noble friend Lord Howe said something vague about how he thought that 12 months might be something that already existed and might therefore be applied or extended to this activity, but there is actually no time limit by which a complaint has to be resolved which would allow the complainant to trigger the tort. It would remove the possibility of seeking urgent injunctive relief, which is something that could be obtained through the courts. It would push complainants back to a choice between a financially ruinous application for judicial review—because it is financially ruinous for the individual —or continuing with a possibly endless complaints process in which, as has been said by others in this context, the punishment is the process. You are an academic with a career to pursue and you are probably not even in a properly tenured post, but to vindicate your rights you have to undertake a process, extending potentially over many months, which comes to consume your life and, ultimately, to damage your career. It is an unenviable choice, and the tort gave people some other option to allow, potentially, for more rapid relief.
Most of all, the Government’s amendment sends a signal to academics who feel oppressed, feel that they cannot express themselves and feel that they are required to conform to an ideology which they know in their heart they do not endorse that a Government who had said that they were on their side and were taking steps to protect them are no longer interested. That is a very bad signal indeed to be sending. I am sorry to say this, but I think that the Government are being feeble.
Lord Moylan (Con)
Now that was a heckle of some value.
To conclude, it might be nice if the Front Bench, which has shown itself capable of endorsing enthusiastically the very laudable Amendment 6, tabled by the Labour Front Bench, could reciprocate by accepting one from its supportive Back-Benchers. If so, I strongly recommend Amendment 21 in my name.
Lord Willetts (Con)
My Lords, I rise to speak to Amendment 22 in my name and those of other Members of this House. I begin by thanking Ministers for their engagement with the tricky issues around Clause 4 and, as we have heard, the wide range of views in this House about it.
I make it clear that I completely back the principle of the Bill, which is the need for the right to freedom of speech to be backed with clearer and more enforceable rights than we currently enjoy. However, another point that the Minister has made on several occasions is that we should not overlook the protections that employment law already provides. It looks as though some of the most egregious cases, such as the terrible treatment of Professor Kathleen Stock, are in clear breach of employment law. It is quite a good principle that we should start by properly using the legal protections and rights that already exist.
As we have heard, there is also the framework of criminal law. Nevertheless, there really are problems in our universities, and most of us in this House are not denying it. I have been shouted down at universities, but I have also had a different type of experience, which reminds us of the good features of universities, which we should not forget. I remember a group of protesters with a megaphone denouncing my proposals on student fees. I went up to them to try to persuade them and they could not hear what I was saying, so they lent me their megaphone. I made my point and handed it back to them, and they got on with their megaphone, and we ended up—in the unpromising circumstances of a student demo outside a university—having a proper engagement and disagreement. We should remember that that still happens in our universities up and down the country.
Nevertheless, the framework of employment law and criminal law is not enough and the Government are, in this legislation, bringing forward a very significant further power for the regulator that already exists, the Office for Students, but giving it a clear responsibility in this area. One thing that surprises me about the sceptics—I have had debates with very concerned academics who back the Bill, and we have just heard from my noble friend Lord Moylan—is that they talk about a vague complaints procedure going on interminably, as if this is some kind of feeble option and we really need litigation as the guts of the Bill. In reality, the Office for Students, created in legislation steered through by my noble friend Lord Johnson of Marylebone, is a very powerful body and its powers are being increased in this legislation. It has considerable understanding of and expertise in universities and will gain extra powers in this legislation.
One of the arguments we heard in Committee about the need for litigation was that we need to have financial redress. It is clear that, within the Bill, there are powers for the OfS to require financial redress and to fine universities. These are very substantial provisions. What is very unusual about the Bill, unlike many other circumstances and many other policy debates I have been involved in over the years, is that the Government are not just empowering a regulator, they are, in parallel, adding a new proposal for a right of tort and civil litigation alongside. That is a very odd way of trying to tackle the problem. The Government should have confidence in the powers of their own regulator, reinforced by the proper enforcement of rights under employment law.
The Minister, whose engagement in this I respect and appreciate, said that we should not worry because, with the amendments he is bringing forward, civil litigation would be a backstop. I do not understand what a backstop is in these circumstances. We all know that a student union—and I worry about student unions at least as much as about university administrations—if one of these controversies flares up, will receive a lawyer’s letter in the first 24 hours. The lawyers will not say, “Let’s wait and see how the OfS proceeds, because we are the backstop”; the legal letters will arrive. When I think, therefore, about the real test of whether there should be this provision for tort, the real test that, surely, all of us in this House can share is: will the net effect of this provision be to increase and enhance freedom of speech in our universities, or will the effect of this power of tort be a further chilling, a further reduction in freedom of speech in our universities?
I think of people who try to organise events painstakingly to promote freedom of speech in their university. They try to find a neutral chair who will chair two highly controversial and disputing views. When one person turns up, they try to arrange for there to be an alternative. They try to find the right place for these meetings and sometimes they are already traduced in the media as if they are somehow part of the problem, when they are actually trying, very decently, to be part of the solution. Will the prospect of a legal challenge to what they are doing give them the confidence to carry on organising those events and promoting freedom of speech in our universities? I fear it will have the opposite effect. I think of a 19 year-old who sets up a student society in his or her university, thinking, “Will I find myself facing a legal letter if I get bogged down in trying to arrange an event?”
We already face a very worrying trend of a decline in the number of external speakers going to universities because people think it is just more trouble, too risky and too dangerous. The risk with these provisions is that they make that trend worse: more people will do exactly what we all fear. They shut up, they keep their heads down, they do not invite controversial speakers, they do not invite any speakers at all; they lie low and stay out of trouble. That would be terrible for freedom of speech in our universities and I fear that is the risk if people expect to face legal challenge for events they organise.
Lord Blunkett (Lab)
My Lords, encores are rarely worth the value of the extra time, but the noble Lords, Lord Grabiner and Lord Willetts, have shown that it can be done. I will be very brief, because they have said so much.
I draw attention to an interesting contribution from Professor Jo Phoenix, who was interviewed recently on Radio 4. She supported this clause on tort, on the grounds that the University of Essex had treated her appallingly—it clearly had; this was acknowledged—but she had not been able to obtain loss. She was not employed by the University of Essex, so the loss was some theoretical appreciation of whether she would be invited somewhere else because of what had happened at Essex.
I commend the noble Earl, Lord Howe, for attempting to meet the debate in Committee, but I think we have opened another can of worms. You go through the Office for Students and the adjudicator and you have the facility of judicial review and, as the noble Lord, Lord Willetts, said, employment law—which I used to teach—which could involve constructive dismissal if you are employed. If you are not employed there but have been treated extremely badly—the right of free speech has been denied you and that has been acknowledged —you might believe that the acknowledgement itself may persuade others not to invite you and you would use the law under this tort to go to court to get redress.
What is the redress? Who will make a judgment on the financial value of what you might have done had you been invited to speak elsewhere, when you do not know whether you have not been or would have been invited? It is a bit like Donald Rumsfeld’s known unknowns. If you go to court with known unknowns, you will be in a disaster area. The only people who will benefit—I say this with some humility to my good friend, the noble Lord, Lord Grabiner—are the lawyers.
The simple way around this is to do two things: approve the rest of this Bill and encourage civil society to be civil and people to stand up for each other, rather than always running to the courts, to deal with this small minority of intolerant, anti-democratic bigots—they are bigots, in terms of not being able to debate properly the rights of women. That is really what we are talking about in lots of these cases. We should not have a merry-go-round of trying to compensate somebody for something which you could never know and, if you did, probably would not have resulted in a loss of income in the first place. Let us get rid of Clause 4 and get back to common sense.
Baroness Shafik (CB)
My Lords, I speak in support of Amendment 22, to which I have attached my name. I declare my interest as director of the London School of Economics and Political Science. It is a great pleasure to follow the noble Lord, Lord Willetts, whose remarks I very much agree with. I also thank the noble Baroness, Lady Barran, and the noble Earl, Lord Howe, for the constructive way in which they have engaged with all of us throughout the passage of this Bill.
It was made clear in Committee that Clause 4, as drafted, was not fit for purpose and that statutory tort would provide an avenue for vexatious, costly and damaging cases to be brought against universities by troublemakers far more concerned with self-promotion than free speech. The clause would have the perverse effect of limiting free debate and exchange of ideas on our campuses by creating exactly the kind of chilling effect that it aims to prevent. Student unions in particular would be frightened of inviting anyone at all, given this risk of lawsuits.
LSE hosts literally hundreds of events every year, which are all open to the public, and as its director, I have chaired hundreds of them. We work very hard to foster an environment where free speech and critical thinking are encouraged. I feel strongly that the solutions to the chilling effect, which I acknowledge exists, lie in education, dialogue and codes of practice, not the courts. Peers in the US, a far more litigious country than ours, are now petrified of inviting any speakers at all for fear of the consequences they may face. I fear that this legislation could take us to a similar position.
I was grateful that Ministers acknowledged that changes were needed and that significant revisions have been tabled on Report. Despite those positive moves, which are very welcome, I am still convinced that Clause 4 remains both unnecessary and potentially very harmful. I believe analysis and redress should be overseen by the regulator, as the noble Lord, Lord Willetts, has said. The existence of the tort system would call into question the working and judgment of that regulator, as well as universities’ own procedures. It would open up our institutions to potentially long, drawn-out and unnecessary complaints brought by individuals with axes to grind, time on their hands and, potentially, the financial backing of those with an agenda. I do not believe that having to go through existing complaints procedures would deter those kinds of individuals.
The potential costs of time, effort and money in highly constrained circumstances are unduly high. Of course, we would have to ask about loss, as the noble Lord, Lord Grabiner, very eloquently noted. Who has sustained this loss? It is still very indeterminate and the legislation as drafted does not require that loss to be material. Is it monetary, reputational or temporal? Is there a minimum threshold for the loss? Could it be the price of hurt feelings or the unquantifiable effects of media attention? All those things are highly intangible. There is still far too much uncertainty and confusion, and too much potential for this tort to be misused or have the perverse effect of stifling freedom of speech, which would be contrary to the other, more meritorious, objectives of this legislation. I concur with the proposal to remove the tort, as I believe it will be counterproductive.
Lord Moore of Etchingham (Non-Afl)
My Lords, I cannot call the noble Lord, Lord Willetts, my noble friend because I am non-affiliated, but outside this House, I call him my friend. He has been my friend for 45 years. I can testify that his well-known nickname is correct and that he does have double the cerebral capacity of the rest of us, so we should all listen very carefully to anything he has to say.
However, although he made many good points, I do disagree with his conclusion. We must not lose sight of the wider context, and I think there is a slight risk that we might do so in some areas of this House. There is a danger of us suffering from what economists call producer capture. By that, I mean that there are a great many people here who are very close to the top of universities. It is not very surprising that they all tend to think that universities are running themselves quite well and that it is all basically all right. However, I think there needs to be a little more power for the voice of the ordinary student and the ordinary, not-very-important academic who is having a rough time. I was very grateful for and impressed by some of the points made about that by the noble Lords, Lord Macdonald of River Glaven and Lord Hunt of Kings Heath, in particular, who really tried to bring home the reality of these difficulties.
Going back to why the Bill exists at all, it is to do with the fact that the traditional freedom of speech ethos in universities came under threat. In the past, threats to academic life came from without but now they are coming from within. That is the essence of the problem and why the Bill got going. Even though there have been some changes and alterations of behaviour—for example, the establishment in Cambridge University was defeated in its attempt to suppress free speech and real free speech won—there are still examples.
In Cambridge quite recently, the master of Gonville and Caius College—I think she did not fully understand that the word “master” in the Cambridge or Oxford circumstances is a misnomer and you cannot issue orders at all; it is a very unmasterly position—said that the presence of Helen Joyce speaking in that college would be hateful and that, on those grounds, her talk should not take place. I believe that Helen Joyce would not have been allowed to speak had it not been for the fact that Professor Arif Ahmed, the great leader of free speech, was a don in that college and stood up for Helen Joyce, so the meeting finally took place.
There is a problem, and it has not been sufficiently acknowledged by everybody here. Therefore, it seems that there has to be in the Bill—as there was and to some extent still is—some form of deterrent. There has to be something that goes beyond the universities themselves to make them feel a little nervous about where they have got to. Since universities are currently failing in many cases to uphold the duty of free speech, we cannot just depend on people such as the expert regulators, to which the noble Lord, Lord Grabiner, referred.
The idea of a new tort is to change that. The law of tort offers remedy to private citizens when private duties are breached. This is as opposed to the upholding of more general aspirations, as might be achieved, for example, by judicial review. This difference has not been sufficiently acknowledged in some of the things that have been said. If an academic could bring timely action under a statutory tort, that would concentrate the mind of the university at which he or she worked. That university would face a real deterrent to impeding his or her free speech, because a county court could find against it, with legal, financial and reputational consequences. As the noble Baroness, Lady Shafik, said, I do not quite understand how the prospect of some suit about free speech would frighten people who were inviting people in the cause of free speech. If, however, free speech complaints must always be brought first to an internal complaints procedure, the university will be tempted to mark its own homework favourably or to spin out the process. Early complainants will then retire exhausted and later, prospective ones will not even bother to start.
I add that the Office for Students, on which much reliance is being placed, is not necessarily the best arbiter. As its name suggests, it is for students. The people at universities for whom the free speech stakes are highest are not undergraduates but career academics. The statutory tort, pursuant to which injunctive power could be exercised, would give them the strong protection they increasingly need. I therefore oppose the amendment in the name of my real friend, the noble Lord, Lord Willetts, and support the amendments in the name of the noble Lord, Lord Moylan.
Baroness Smith of Newnham (LD)
My Lords, I do not want to detain the House too long because I realise that there will be a move to a vote relatively soon. I support Amendment 22 and will politely say a few words against the noble Lord, Lord Moore, if I may respectfully put it that way.
I am an academic at the University of Cambridge, I signed the amendments put forward by Professor Ahmed and I believe in free speech. However, I am concerned that the idea of a tort will do exactly the reverse of what the noble Lord, Lord Moore, just said. If we want to support the junior academics and students, the way to do that is not to have a legal procedure. As a noble Lord on the other Benches mentioned, the people who will benefit most are the lawyers; the people least likely to be able bring these legal cases are students and junior academics, particularly junior academics at an early stage in their careers. Therefore, the whole idea of a tort will do exactly the opposite of what the noble Lord just implied.
I absolutely agree that we need to listen not just to heads of Oxbridge colleges, chancellors and vice-chancellors of universities, and people like me. However, I hope I speak on behalf of students, members of the casualised part of university staff and other academics in saying that this legal provision will not benefit individuals because those who will have the resources to fight are the university bureaucracies, not individuals.
Baroness Fox of Buckley (Non-Afl)
My Lords, like the noble Lord, Lord Strathcarron, I have put my name to Amendment 21 in the name of the noble Lord, Lord Moylan.
Earlier, the noble Lord, Lord Wallace of Saltaire, suggested that the front page of the Telegraph, complaining about the Government backing down, was simply complaining about mere amendments to the Bill. My concern, though, is that the government amendments are in danger of gutting the Bill. I thought that the Bill’s hope was to allow a shift in the balance of power in higher education institutions away from censoriousness and towards open-minded, tolerant free speech. However, it seems to me that so much turns on enforcement because one’s rights are only as effective as the remedies available when they are violated.
Clause 4, as was, underpinned the duties designed to protect academic freedom through allowing a person to bring civil proceedings against a university or college in respect of a breach of those duties. That would mean hitting universities where it hurts: their pockets. An institution found guilty of violating academic freedom would have to fork out cash to an individual whose rights were infringed. As one academic—Julius Grower, an associate professor of law at the University of Oxford —points out,
“the threat of this alone should be enough to encourage university and college leaders to promote academic freedom.”
Let us see what we are left with following the Government’s new amendments; it is all a matter of national-level administrative procedures, where a person may now bring private proceedings only if they have previously
“brought a complaint relating to the same subject-matter … under a relevant complaints scheme”—
that is, via the Office for Students.
It is with relying on such complaints schemes that I have a problem. Anyone familiar with these schemes will know that they can be sclerotic and bureaucratic and can take months, sometimes years. What is more, they are vulnerable to political interference. A political appointee will, after all, oversee the complaints procedure of the Office for Students, so a beleaguered academic whose freedom has been violated will have to wait and wait before being able to bring a meaningful claim against the university. The amendment in the name of the noble Lord, Lord Moylan, would avoid the threat of overly litigious responses, which has been mentioned, and give us a way out. No one is claiming that these remedies will suffice to keep campus cancel culture at bay, but it is important that they will give university authorities pause while encouraging intimidated staff and students to have the confidence to voice their dissenting views.
Most of the push-back against Clause 4 has been from university vice-chancellors and those who run colleges. I absolutely agree with the points made by the noble Lord, Lord Moore, on this issue. They are a powerful, privileged lobby group of people with an interest in this. I appreciate that, if you run a college, it is your worst nightmare to have a civil tort aimed at you. I understand that. However, it is precisely those who run universities who need to feel that the pressure of this legislation is more than words because, despite all the focus on ideological trouble-makers and mischief-makers that we have heard from noble Lords today, they are presented as the villains just waiting to pounce into the civil courts and throw litigation around. This is an incredible example of straw-manning.
The very driver of the Bill is that there are real-life, concrete trouble-makers, here and now, in universities, who are targeting closing down free speech and declaring that certain views are verboten. They are not imagined trouble-makers; this is really happening now. Yet the imagined villains that have been described are those who are somehow waiting to use this clause only to make money. The truth is that, despite what the noble Lord, Lord Grabiner, suggests, vice-chancellors are not, as yet, queuing up to invite JK Rowling to speak at their universities. The suggestion that she can speak is good. Invite her, all of you—why not? A challenge.
The villains of this piece are often posed as generation snowflake, or social justice warriors who are young. Goodness knows, I spend huge amounts of my time when I am not here going around talking to students at universities and to sixth-formers. Generation snowflake does exist—and wow, do they heckle; I know all about that. But I actually do not think that they are the problem. Often the problem is university senior management, which either spinelessly gives in to the loud demands of a minority of students or leads the charge with ideological silencing policies that are adding to a censorious climate. I talked about this in my earlier speech.
The University of Sussex has been named and shamed so often in this House in relation to Professor Kathleen Stock that I have got to the point where I am feeling sorry for it. The university’s vice-chancellor is not some outlier; he is one of many. We just happen to know about Kathleen Stock because she went public. This is not some imaginary culture war. These are university managers who are hanging out to dry their own professors, academics and often students.
The noble Lord, Lord Blunkett, mentioned Professor Jo Phoenix. I have heard a variety of interviews with Professor Phoenix and have met her on many an occasion; she is battling away in an employment tribunal. It is true that it is difficult to sort out how she can get redress for her reputation having been traduced. She is taking action against the Open University and the way she was treated by the University of Essex. She said that she was shocked but not surprised that the Government had folded on Clause 4, and felt that she had been abandoned yet once more. There are many people like Jo Phoenix who are fighting on and on. Look, for example, at the files kept by the Free Speech Union, of which I am an advisory member. People think that my membership must mean something, and it does: it means I am committed to free speech. In those files there are hundreds of examples of students and academics who have been suspended by university authorities and gone through disciplinary procedures for mis-speaking and saying the wrong thing.
For me, I wanted this law to frighten university authorities —a little bit. I thought that the amendment of the noble Lord, Lord Moylan, had done a huge amount to ensure that the overchilling impact—which the noble Lord, Lord Willetts, talked about—of litigiousness everywhere could be kept at bay, while also ensuring that that tort exists. It will not solve all the problems; there is a much bigger cultural problem in relation to free speech in society. Those opposing Clause 4 are too often not loud enough to fight that culture either. They tell us that they do not need the Bill and that they do not need this clause, and that everyone here is a free speech warrior—I wish. We need this clause, and we need you all to become free speech warriors as well.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, after a lifetime in the law, I was thrilled beyond all else to hear what my noble friend Lord Moore said about the merits of the courts as he lauded the courts, independent justice and so forth. However, I profoundly disagreed with what he said in this debate, because one other thing I have learned over a lifetime in the law—actually it seems a good deal longer than a lifetime—is that any legal proceeding has real downsides to it.
Cost is the first and obvious one: all the problems outlined today about that are true in spades. Secondly, there is the delay in getting to the hearing of the action on the statutory tort, and the subsequent delay between the hearing and the result, with the uncertainty that these delays inevitably carry as to the exact position in law—assuming that there is any law in the case and that it is not just asking for a fresh, factual decision. There has been talk of delay under the statutory regulatory processes. This statutory tort has no special time limit: you can bring it for six years. And why would it end with a first-instance decision? It might wind up in the Supreme Court. Is that what you want?
The third downside during the whole process is the hassle and worry. It is a nightmare for the litigant who is dragged into the process. Therefore, unless there are the most compelling reasons, I say that it should be avoided at all possible costs.
Baroness Altmann (Con)
My Lords, I support many of the comments that have been made. As a non-lawyer, I think it is impressive that two senior lawyers have urged the House not to accept this remedy that would be ideal for helping lawyers. I will listen very carefully to my noble friend on the Front Bench because I think that, at the moment, we have to be very careful about unintended consequences. This is a well-intentioned, well-meaning and good Bill, and I share the determination to attempt to stop the stifling of free speech that has been going on. But the fear is that, even if a case were taken and won, it might not provide a meaningful remedy in financial terms—of course winning is fine, but if you do not get the right remedy, it has not taken you very far—for the person who is under threat, and the risk that poses to universities themselves to me suggests that there is perhaps an overreliance here on the idea, in theory, that having the ability to sue will make a huge difference. The result in practice of having that remedy could be that it has the reverse impact of what is intended.
Lord Wallace of Saltaire (LD)
My Lords, one of the Second Reading speeches that most impressed me was from the noble Viscount, Lord Eccles, whom I see in his place. He reminded us that Conservatives are in favour of limited government and limited intervention, and of autonomous institutions in civil society, and that universities are autonomous institutions and so the state needs to be very careful before it puts extra burdens on them.
At present, and in recent years, the state has added a number of extra burdens on universities, even while reducing its financial support. The National Security and Investment Act requires universities to report on a number of things. The National Security Bill, which had its Second Reading yesterday, has very substantial additional implications for universities, and we will discuss later this evening the overlap between its reporting requirements on overseas funding and the reporting requirements of this Bill on such funding.
As autonomous institutions, universities are led by responsible vice-chancellors and others, some of whom make mistakes. My first year as a university teacher was 1968. The vice-chancellor of my university, the University of Manchester, made some disastrous mistakes in dealing with the student revolts. The then director of the London School of Economics was just as bad. Most vice-chancellors learned from that.
Lord Collins of Highbury (Lab)
My Lords, I have a confession to make: when I spoke at Second Reading, I expressed the opinion that this Bill was not necessary. However, during the process of Committee and the dialogue and discussions that I have had with many noble Lords—by the way, I have no interest as a university leader to declare—I was persuaded that there is an issue to address.
My experience as a trade union official over many years is that, when you want to change behaviour and culture, you do not do it through the courts. You do it through the very mechanism that the Bill proposes: improved and strengthened regulation, and a strengthened code of practice. That is what the Bill attempts to do and I have been convinced that it is necessary from hearing the arguments and all the cases and evidence given. This is not a binary choice: I now accept that the Bill is necessary. However, in my opinion, keeping Clause 4 would undermine the very thing the Bill is seeking to achieve. If you support the Bill, get rid of Clause 4, because it would undermine the very thing we are seeking.
Our approach, throughout Committee and Report, has been not to make this a partisan or party-political issue. We have heard the debate and listened, and I have accepted the need for the Bill. That is why I signed the amendment of the noble Lord, Lord Willetts. I expect and hope to divide the House, because this clause needs to go.
Earl Howe (Con)
My Lords, I begin by expressing my thanks to noble and noble and learned Lords from all Benches of the House for their thoughtful and helpful contributions to this debate, all of which I listened to with great attention. I think it would be helpful to the House if I begin my response by considering the tort in the round, before turning to the amendments tabled to this clause, bearing in mind the nature of the debate in Grand Committee and the subsequent, helpful discussions that my noble friend Lady Barran and I had with a number of noble and noble and learned Lords outside the Chamber.
The tort has undoubtedly been one of the most controversial measures in the Bill. A number of noble Lords have spoken today to express their opposition to its inclusion in the Bill. However, other noble Lords strongly support the inclusion of the clause. My noble friends Lord Moylan, Lord Frost, Lord Strathcarron, Lord Jackson of Peterborough and Lord Farmer, and the noble Lord, Lord Moore of Etchingham, have written to me setting out compelling arguments for retaining the tort, some of which we have heard today. Many of the arguments have been echoed by the Free Speech Union in a letter to the Secretary of State for Education signed by 49 leading academics, among them, incidentally, Professor Kathleen Stock. Perhaps I might say in that context that I reject the view expressed by my noble friend Lord Moylan that the government amendments, to which I spoke earlier, somehow water down or weaken the tort provision. They address the concerns expressed about the perceived risk of the OfS’s role as a regulator being undermined and of unmeritorious claims burdening universities with unnecessary costs. I am sorry that no noble Lord acknowledged that the government amendments would deal with those perceived risks, in my view, pretty comprehensively.
We are dealing here with a mixture of arguments. Part of the argument advanced for removing the tort is that it is unnecessary and that there are somehow other measures available to achieve the same thing. I think the best place for me to start would be to address that issue. The noble and learned Lord, Lord Hope of Craighead, suggested in Grand Committee that there would be a common-law tort available, even if the statutory tort was not in the Bill, and that view has been supported by other noble Lords. The Government have looked carefully at that proposition, but we are not convinced that that position is sufficiently legally certain, and for that reason it is not something on which we would wish to rely. I believe that opinion is divided even among noble and learned Lords on the issue.
The purpose of including the tort in the Bill at introduction was to make it 100% clear that a tort will be available, rather than leaving it to the courts to infer whether or not Parliament intended there to be a tort, which in certain cases, they may do. To leave the situation uncertain when we have the opportunity to be absolutely clear would be remiss of us.
The noble Lord, Lord Grabiner, made the point that the tort is not necessary because judicial review is available, whether of a decision by the higher education provider or a decision under the complaints scheme of the Office for Students or the Office of the Independent Adjudicator for Higher Education. However, judicial review is not available against decisions of a student union, and damages are generally not awarded in judicial review claims. I am afraid I do not accept his argument that damages would never be quantifiable in such cases. Of course, let us bear in mind—
Lord Grabiner (CB)
I am grateful to the Minister for giving way. With respect, I did not say that they would not be quantifiable. My point was that there would be difficulty in quantifying the figure but in any event, in my view, for what is worth, the figure that you would arrive at would be peanuts, or not much more. That is why I could not really understand the significance of the argument that the reason for the tort was to protect the financial position of a complaining party.
Earl Howe (Con)
I am grateful to the noble Lord. It is not the only reason for the tort, as I shall go on to explain. I was going to say that we need to bear in mind that under a judicial review the court would consider standard judicial review grounds, such as a failure to take relevant considerations into account, rather than the substantive issue of whether reasonably practicable steps were taken.
Equally, it has been argued that the tort is not necessary because a claimant could bring a claim for a breach of Article 10 of the European Convention on Human Rights. However, again, this would not be available in relation to student unions because they are not public authorities, and the test for whether damages may be awarded is not an easy one to satisfy. Again, the court would consider whether there had been a breach of Article 10, rather than of the duties under the Bill.
In Grand Committee the noble and learned Lord, Lord Etherton, suggested that we should specify in the Bill what remedies are available in a tort claim. I come back to the point made by the noble Lord, Lord Grabiner, a moment ago, which was a helpful intervention because it highlighted the potential role that court proceedings could have in particular cases. The Government’s intention is that damages should be available to compensate the claimant for the loss they have suffered. We can argue about whether the damages are nugatory or more substantial.
There may be situations in which an injunction is appropriate, for example if a student is expelled from their course and so the court orders the provider to offer them a place on the course for the following year. Other remedies may be suitable in some cases, in addition to these—perhaps a declaration. Our view is that where a claimant does not believe that they have been fairly dealt with by the OfS or the OIA, we should leave it to the courts to determine what is appropriate in an individual case.
Various noble Lords have raised concerns that the tort will create a chilling effect, dissuading higher education providers, colleges and student unions from inviting controversial speakers to campus because of fear of litigation. My noble friend Lord Willetts raised this concern; I understand him to believe that the availability of the tort may cause students or academic staff to self-censor over fears of being labelled a controversial speaker or lecturer.
To say that the Government are not convinced by these arguments is an understatement. The stronger counterargument appears to us to be that the Bill as a totality, including the tort and codes of practice, will create a stronger regime that will encourage providers to make sure they are getting their decisions right and will encourage a change of culture across our campuses. That regime and change of culture will deter providers from the notion of simply not inviting controversial speakers and will give greater protection to academic staff to speak out.
The noble and learned Lord, Lord Brown of Eaton-under-Heywood, expressed a concern that has been raised with me in other contexts outside the Chamber—that the OfS complaints scheme will simply take too long to reach a decision. I am glad he raised that point, and I hope I can reassure noble Lords on that score. The OfS will consult on the scheme rules and will publish clear expectations on timetables. It will be held to account on its efficiency and the effectiveness of the scheme by its board and by the Government.
As a possible exemplar, the OIA says of its complaints scheme that it commits to normally sending a complaint outcome within 90 days of receiving all the necessary information. It also says that where a party needs a case to be reviewed particularly quickly, it can request that it be prioritised. Some cases may take six months to review overall, by the time all the information has been gathered, but others may take much less time, depending on the complexity. It is worth noting in this context that the limitation period for bringing a civil claim is six years, so there is little risk of missing that deadline if this approach is taken. I hope that explanation gives some comfort to those who are concerned that a complaint may go into some sort of black hole and not come out again for years and years.
I want to cover another issue that was raised in the context of government Amendment 20, so that it is understood. We do not consider that this amendment would prevent a person seeking an interim or emergency injunction in the courts. Such an injunction would be sought in a case where the claimant wants to prevent a future breach of the specified freedom of speech duties, rather than where a breach has actually occurred—in other words, where there is the threat of a breach. In that case, an individual would not be able to complain to the OfS or the OIA under either scheme, as there has been no breach yet. Accordingly, the requirement to have first exhausted a complaint scheme would not apply and the claimant could in principle go straight to the courts.
Member’s explanatory statement
This ensures that only persons who have sustained loss can bring civil proceedings under the new section A7 inserted into the Higher Education and Research Act 2017 by the Bill.
Member’s explanatory statement
This ensures that only persons who have sustained loss can bring civil proceedings under the new section A7 inserted into the Higher Education and Research Act 2017 by the Bill.
“(2) A person may bring proceedings under subsection (1) only if—(a) the person has brought a complaint relating to the same subject-matter as the proceedings under a relevant complaints scheme, and(b) a decision has been made under that scheme as to the extent to which the complaint was justified.(3) Each of the following is a “relevant complaints scheme”— (a) the scheme provided by virtue of Schedule 6A (the free speech complaints scheme), and(b) the scheme for the review of qualifying complaints (within the meaning of section 12 of the Higher Education Act 2004) that is provided by the designated operator (within the meaning of section 13(5)(b) of that Act).”Member’s explanatory statement
This provides that a person must first have recourse to a complaints scheme before bringing civil proceedings under the new section A7 inserted into the Higher Education and Research Act 2017 by the Bill.
Lord Willetts
Lord Willetts (Con)
I would like to seek the opinion of the House on this amendment. It has been a really valuable and important debate, and I recognise the enormous contribution the Minister has made to our deliberations. However, the OfS is a very powerful mechanism. It is not some patsy that is in the pockets of vice-chancellors; it is a very effective regulatory mechanism which is further strengthened in this Bill.
The people I most worry about are those young people wrestling with arranging events at their universities. It looks as if freedom of speech is some absolute and complete right—who could possibly challenge any freedom of speech? However, they are wrestling with practical questions. What if you discover that the invitation is for the same week as exam week, and a controversial speaker is coming just as the university is holding exams? What if the fundamentalist speaker, as part of his right to speak, is going to insist on gender segregation of the people attending the event? How do you judge those types of difficult questions?
It is hard enough at the moment for the young people who do it, some of whom, I suspect, may end up as Members of this House or another place. They do not need the threat of litigation hanging over them when they are reaching those decisions, so I beg to move my amendment.
Lord Sikka
“Research grant funding and academic integrity
After section A7 of the Higher Education and Research Act 2017 (inserted by section 4) insert—“A8 Research grant funding and academic integrity(1) The provision of grant funding for research shall not be used as a means of interfering with the freedom for academics—(a) to publish and disseminate their research; or(b) to decide on the final form and academic integrity of such research.(2) Unless the conditions in subsection (3) apply, no contractual or other provision in a funding agreement that gives editing or publishing control to the funder shall be enforceable by law.(3) The conditions referred to in subsection (2) are— (a) that a court finds the full publication of the research would threaten national security, public safety, or health; or(b) the contracting parties to a research funding arrangement agree confidentiality of results in advance.””Member’s explanatory statement
This amendment reduces the ability of public, private or philanthropic funders of academic research to infringe upon academic integrity and the freedom to publish results. Contractual attempts at interference with academic expression will be unenforceable, unless confidentiality of research was agreed in advance or where a court finds a national security, public safety or health justification for preventing publication.
Lord Sikka (Lab)
My Lords, I am grateful to the noble Lord, Lord Moylan, the noble Earl, Lord Lytton, and the noble Baroness, Lady Bennett of Manor Castle, for their support for this amendment. I raised the subject of academic integrity and freedom to disseminate research findings at Second Reading and in Committee. Several important issues were raised, and this amendment has been extensively rewritten in light of that. I believe that it now complies with Article 10 of the ECHR.
The revised amendment prevents the gagging of academics by research funders who do not like the findings. However, the right to publish research is also constrained by my amendment’s proposed new subsection (3), which basically states that, if the research findings would
“threaten national security, public safety, or health”,
they need not be published. They also would not if
“the contracting parties to a research funding arrangement agree confidentiality of results in advance.”
Major issues were raised during the last debate, and I will address them.
In Committee, I provided examples of how the Government themselves suppressed Covid-related research findings, for which we are yet to receive a full explanation. The research was funded by public money and did not threaten national security or public safety, but it was still suppressed. The publication of that research could have provided insights into the cost of Covid tests and of controlling the pandemic, and possibly have helped to frame more effective public policies.
I also cited examples of the tobacco and food industries censoring or preventing the dissemination of research. The unhindered publication of academic research would have created greater awareness of the dangers of smoking and the ill effects of processed food, and, again, this may well have enabled the development of more informed public policies.
Research showing that generic drugs are just as effective as branded drugs would have reduced the cost of medical treatments, as well as the cost to the NHS. In Committee, it was suggested that my amendment was somehow not appropriate for the Bill, and that transparency was a key issue. I will tackle that head on because I am happy to respond to these points. The amendment is about academic freedoms, and the clue is in the title of the Bill, which includes the words “Freedom of Speech”. Advancing and protecting the academic freedom to publish uncensored research is directly relevant to it; there is no other Bill where these kinds of issues can go at the moment. The point about transparency is important, but the unhindered publication and dissemination of research is the best form of transparency.
Over the years, I have been on many academic journal editorial boards, so I am well aware of the politics of publishing and commissioning research and so on. All reputable peer-reviewed journals require authors to disclose sources of research funding and to make the relevant data, wherever possible, available to other scholars. However, that point can be reached only when a scholar submits a paper for publication. If research funders supress the findings, a submission to a journal does not take place, and the data cannot be provided easily to other scholars—you need not necessarily disclose who the funders are, because that point is not reached. If research findings are diluted by the funder, the researcher has the option whether to accept the diluted paper and proceed to publication or not. If the researcher chooses not to proceed to publication, there will be no transparency about funding at all. If the researcher succumbs to pressure from the funder and accepts the dilution of research outcomes, he or she is unlikely to be permitted to say that the funder rewrote or took out large chunks of the paper. So there is no transparency about the pressures which prevent the publication of the paper, which is what I am really concerned about.
Of course, there are numerous research registers which list the grants obtained by scholars, but a mere listing of the source does not amount to transparency because it does not tell us anything about the gagging of those researchers or prevention of their publication. Just naming the funders does not tell us about the contents of the research, research methods, research methodology, analysis, discussion or possible public implications.
Full transparency, which is what I am concerned with, covers all those things, and that can be provided only by publication of the research, not permitting funders to say that you cannot publish it because, somehow, they now feel that it would damage their reputation or reduce the revenues arising from the sale of tobacco-related products or processed food. Gagging comes in many guises; it is not simply somebody saying that they will not let you publish—they behave in all kinds of interesting or strange ways.
I shall give a personal example. For a long time, I have taken an interest in auditor regulation. Under the Companies Acts, a resigning auditor is required to issue a statement addressed to shareholders and creditors stating whether there are circumstances in connection with that resignation that shareholders and creditors need to be aware of, then to list them, or to say that there are no circumstances and leave it at that. What do the auditors actually do? I conducted the only piece of research on that over the past 100 years, and I looked into it. I learned that Companies House does not publish the data, but on inquiry it said that it could write a piece of software for me, interrogate its database and tell me which company auditors had resigned. This was in relation to public limited companies. In those days you had to buy microfiches, so I would have had to buy the microfiches and track down whether there was a letter of resignation from the auditor.
I got the data and approached the Institute of Chartered Accountants in England and Wales and asked whether it would help to fund the cost of writing the software and buying microfiches. I got the grant, and I looked at all 800 auditor resignations relating to public limited companies. What did I find? Only 2.5% of the resigning auditors complied with the law. The other 97.5% were silent; they did not say anything. But roll forward a few months and I started looking—and what do I find? In many instances, the auditors got out quietly but there was a scandal, with major frauds and other kinds of corporate collapses, which suggested that the auditors had basically abdicated their duty. They did not want to say anything or get a bad name for being troublesome, which is not very helpful for getting new audits or consultancy work.
I submitted my report to the Institute of Chartered Accountants in England and Wales, which said that it would get back to me. That is what is required—you submit a report. Would it say that I could go ahead to publish or say that I could not? It said neither yes nor no, and meanwhile the research was getting stale, and I had to make a decision. Was it important enough for people to know what auditors were up to, or should I just be quiet? I decided that I would publish the research, and it was published as a research monograph. Needless to say, I never got a research grant from the ICAEW again. The public suffers.
That is just one example of how people are gagged. Not everybody wants to follow their conscience and just publish. What I am trying to do through this amendment is to empower academics so they can publish research that is vitally important. There is nothing in the Bill that prevents gagging of scholars through subtle or not so subtle forms of silencing. We all see the world by standing on the shoulders of intellectuals. The barriers to publication of research prevent us seeing things, and this amendment would lower those barriers. I beg to move.
Lord Moylan (Con)
My Lords, I speak in support of Amendment 23 in the name of the noble Lord, Lord Sikka. I said at Second Reading that there was a lacuna in this Bill, in that it did not deal with finance and money. Finance, of course, is what makes the world go round, and the scope for using money to limit freedom of expression and academic freedom is obvious. It hardly needs to be explained. So why would a Bill that addressed academic freedom not deal with this question of money and its potential abuse?
Quite independently of the noble Lord, Lord Sikka, in Committee I tabled three amendments trying to cover such aspects as the use of donations, the use of research grants and a couple of other matters which I thought were worthy of debate. Independently, the noble Lord, Lord Sikka, tabled an amendment much along the lines of the one he has just spoken to. As we proceed to Report, I have dropped mine, but the noble Lord has refined the drafting of his amendment considerably, and it is now a very good amendment and one that I think deserves a response. Sadly, in Committee, I do not feel it had quite the response or the engagement from either Front Bench that this important topic deserves.
Baroness Bennett of Manor Castle (GP)
My Lords, it is with pleasure that I support the noble Lord, Lord Sikka, in his Amendment 23. Noble Lords will note that, as has been the case with quite a number of amendments to the Bill, there is certainly a broad political range of support for this one. I think that is a demonstration of the fact that what we are looking at here is an issue that is recognised right across the political spectrum as a matter of grave concern. As the noble Lord, Lord Moylan, just said—I agree with him—it really was not adequately addressed by either Front Bench in Committee. This is my first contribution on Report, so I should declare that I now have the support of my second excellent intern from King’s College London.
The noble Lord, Lord Sikka, set out in Committee, and tonight, a range of areas where this is likely to be an issue: defence, gambling, tobacco and medicine. I would add to that agrochemicals and plastics. Of course, we should not forget the issue of research into government policies, which is so obviously a crucial matter of public interest. The international case study—the most famous or infamous case—is that of Mincome, the Manitoba basic income experiment, which was launched in 1974 under a broadly progressive Canadian state Government and shut down in 1979 under a new conservative Administration. The data from that big, significant trial disappeared into the Winnipeg regional office of Canada’s national library and archives. It was the initiative of one researcher, decades later, to dig out 1,800 dusty boxes packed with tables, surveys and assessment forms, and to digitise the lot. This revealed the positive impact that basic income had had. It was a really significant trial, but that knowledge was denied to the people of Canada, who had funded it, and to the world for decades afterwards.
The House may be pleased to hear that I will not test your Lordships’ patience by telling my own academic tale of woe about research into abomasal bloat in goat kids many decades ago. Suffice it to say that I am well aware of the often pernicious impact of commercial interests on academic research.
As the noble Lord, Lord Sikka, just outlined, in some ways he has watered down the amendment presented in Committee. I would definitely prefer this amendment without proposed new subsection (3)(b). A great deal of the research we are covering is conducted in public institutions by academics; it may be funded by a private interest or the Government, but its main support comes from public funds. Any research for which that is the case should be fully open and available to all. None the less, adding this amendment to the Bill would be a significant improvement.
The Green position overall remains that the Bill is unnecessary and more gesture politics than serious law. But if we are going to have it, this amendment could be a useful protection for academics seeking to add to the sum of human knowledge—and very often contribute to the public good—when they are in danger of being muzzled by private, commercial or government interests. That, combined with the impact of the casualisation of academia, inadequate pay, job insecurity and government policies seeking to narrow the scope of academic research, particularly research critical of the status quo, presents far greater issues for academic freedom than the alleged issues covered by most of the rest of the Bill.
Baroness Fox of Buckley (Non-Afl)
My Lords, I thank the noble Lord, Lord Sikka, for tabling this amendment. It is such an important issue and I am glad that he has brought it back.
We all want multiple funders for research—this is not an attempt to argue against the funding of research—but we need to be wary of a tendency towards advocacy research, from any direction. We sometimes assume that this concerns mainly big bad corporates; we need to look carefully at business interests, which have every interest in having their interests represented by the apparently impartial academic sector, but this can also be true of the big charities sector. It is often assumed that their backing of research will always be on the right side, but we should remember that they are also lobbying organisations.
That is why I am so glad that the noble Lord, Lord Sikka, mentions all sectors, including philanthropy. His main point is basing our decisions on transparency. As he rightly says, transparency should go way beyond just listing them, because in that instance you can end up with a situation where people think, “This big corporate has sponsored that, so therefore it must be corrupt research,” but also, “This big charity sponsored this, so it must be good research.” You want to know exactly what influence any funder has on the research. The amendment is particularly important since the phrase “the research shows” is often used as a precursor to “so we don’t need any debate”, because research is treated as a holy grail of truth. We need to make sure that research is reliable.
Finally, there is another threat to the impartiality of research: the ideological capture of research organisations, sometimes associated with the Government. I mentioned in Committee that UKRI, a non-political organisation to distribute government largesse which is the largest funder of research that we associate with the Government, boasts in its new equality, diversity and inclusion strategy that it has been inspired by political advocacy groups and grass-roots movements. It advocates that UKRI-supported research is “delivered in inclusive ways”, “uses levers” to make change, and so on. That calls into question impartiality in deciding the distribution of public research money.
Whatever the noble Lord, Lord Sikka, decides to do with this amendment, I hope that the Government and the Minister will take into account that this area cannot be neglected if the Bill is to be successful in protecting academic freedom.
Lord Wallace of Saltaire (LD)
My Lords, I cannot agree with the noble Baroness that ideological capture takes place in as quite as many places as she has suggested over the course of today’s debate. Of course, “ideological capture” is itself an ideological term. I think I know enough about UKRI to know that ideological disagreement and disagreement about evidence and priorities will continue to plague it, as all such organisations are likely to be plagued. I am sympathetic to this amendment, although I suspect that what it seeks to achieve is best provided by codes of practice and guidance.
I have had some experience in my career of having difficulty with getting research that I have done published. The first and hardest battle I had was with the Board of Trade, which had commissioned from Chatham House a study of the principles of trade policy. The economists who wrote it for us actually talked to a number of trade policy people and therefore produced something that was not entirely in line with the conventional wisdom of the economics profession. The economists at the Board of Trade therefore wanted to prevent us publishing it. We fought hard and they eventually gave in.
A more recent example was when I was asked by a think tank to contribute to a group of essays on the experience of outsourcing in the public services. I wrote something which was quite critical of outsourcing. I should have looked at its website, annual report and list of funders before I accepted the job. When I discovered that the largest outsourcing firms were among its largest funders, I realised why it had some hesitation about publishing what I had written. Again, after a small number of editorial changes, it finally accepted it.
I compliment that think tank for making as transparent as it did who its funders were. One of the briefing papers we have had for the Bill has pointed out the paradox that Policy Exchange, the fons et origo of much of the Bill, demands that student unions and others should be much more transparent about their funding but is itself entirely opaque about its funding. When I read the policy papers which led to the Bill, I was struck by the number of footnotes to American sources—much more than to any other international comparison. I wondered how much funding from various right-wing foundations in the United States had come into Policy Exchange. I do not know—perhaps there was none—but it should be a great deal more transparent about its funding. During the passage of the National Security Bill, I intend to push for more transparency from lobbying charities of that sort, to increase our sense of open debate.
I support the principles of this amendment, but I am not sure that we need to incorporate it in the Bill. I am sure that the Minister, in the spirit in which he has taken the whole Bill, will wish to make sure that the arguments are taken into account and that the principle of open research and publication is accepted and pursued, and not blocked by either civil servants and Ministers in government, or those outside government who commissioned the research.
Baroness Royall of Blaisdon (Lab)
My Lords, the Faculty of Music at Oxford University does excellent research. Earlier on, the noble Baroness, Lady Fox, said:
“When the University of Oxford’s Faculty of Music decolonised its curriculum in response to student pressure, the university itself sought to forbid criticism of the new curriculum.”
I have checked with the head of humanities at Oxford University, Professor Dan Grimley. There were indeed some articles in the Daily Telegraph and the Daily Mail suggesting that that might have been the case, but I have it from the professor—from the horse’s mouth, as it were—that the music curriculum at Oxford has not been decolonised and there has been absolutely no attempt to stifle debate.
Baroness Fox of Buckley (Non-Afl)
Briefly, on the horse’s mouth, I did not get my information from the Telegraph; I got it from music academics at Oxford University.
Lord Collins of Highbury (Lab)
My Lords, my noble friend Lord Sikka knows the Labour Front Bench’s position on his amendment, because I wrote to him about it. He knows that we are very sympathetic to the issues and, like the noble Lord, Lord Wallace, believe that they need to be addressed. Certainly, over the years, all Governments have been focused on sufficient funding of research, through different mechanisms, such as the Medical Research Council and the Economic and Social Research Council—all these bodies through which we have attempted to ensure that research is open and transparent.
One of the problems that my noble friend is seeking to address is the sort of research when somebody decides to ask a question, hoping they know what the answer will be, and those tend to be funders, whether from business or industry. They are seeking a particular outcome and, if they invest in that research and the outcome is not the one they want, of course they will not publish. The noble Baroness, Lady Fox, focused on charities. I keep harping on about my own experience in the trade union movement, but I must admit that we certainly funded research in the hope that it would support our case for greater workers’ rights and higher pay. It did not always come out the way we wanted and we were sometimes not particularly keen to publish it. We did not prevent the academic from expressing the view and certainly did not stop them from publishing it themselves, but we were not necessarily going to promote it.
The Bill is about freedom of speech—we have had a long debate about it. When it comes to academic freedom and research, there are much more complex questions that should not really be dealt with in the Bill. I am fully sympathetic to some of the arguments that my noble friend Lord Sikka made, but this is not the right Bill, and certainly these amendments are not the right ones.
Earl Howe (Con)
My Lords, Amendment 23 tabled by the noble Lord, Lord Sikka, seeks to ensure that the provision of grant funding for research does not interfere with the academic’s freedom to edit and publish their research. The only exceptions would be if there was a confidentiality agreement between those giving and receiving the grant made in advance or if a court finds that full publication would threaten national security, public safety or health.
The noble Lord is of course right to be concerned about the provision of grant funding for academic research and, as he acknowledged, we discussed this issue in Grand Committee, although perhaps not conclusively. The approach in the Bill is to place duties on registered higher education providers, their constituent colleges and student unions. I have to say that it goes too far to place duties on others, such as those who give grant funding, and I am also not at all comfortable with the idea of interfering in the private contractual arrangements between parties, which would be the effect of this amendment.
If an academic wishes to seek grant funding, it is for them to agree with the other party what contractual arrangements should apply. That is in fact reflected in proposed new subsection (3)(b) of the noble Lord’s amendment and reflects the Haldane principle: that decisions on individual research proposals are best taken by researchers themselves through peer review—a principle enshrined in the Higher Education and Research Act 2017.
However, in my view it would go too far to require legal proceedings to determine whether full publication of research would threaten national security, public safety or health. First, those are extremely limited reasons, which I appreciate is the noble Lord’s aim, but there may well be other legitimate reasons why the grantor would not want full publication. Secondly, this would potentially open the door to costly and time-consuming litigation. I fear that this may have a chilling effect on grant funding if it deters grantors, which is obviously not desirable; it may also affect the academic, as a potential party to the litigation, who is likely not to have the means to fund their part in it. It does not seem to me that the involvement of the courts in such a matter is appropriate.
Noble Lords have suggested that there is a lacuna as regards transparency in the domestic funding of higher education. I hope that I can allay that concern very simply. The Higher Education Statistics Agency collects data about research grants and contracts, which is publicly available. The OfS collects data that it needs to support its functions, including ensuring that providers are financially sustainable, and publishes this through annual reporting.
Given those points, I hope that noble Lords will agree that this amendment is not necessary.
Lord Sikka (Lab)
I am grateful to the Minister and all the other participants in this debate for the vital points that they have made. This amendment is not about sources of funding. It is about the ability to disseminate research findings when the funder decides that the outcomes are not what they were looking for but are of vital interest to other stakeholders. It is when those findings are suppressed that I am really concerned about. I gave an example from my personal experience but, if you met academics on the conference circuit, many of them would tell you similar kinds of stories. That issue remains, and I do not see anything in the Bill to address it.
I am grateful to the noble Lord, Lord Wallace of Saltaire, for his comments but I do not think that this is an issue of codes of practice. Codes of practice cannot bridge asymmetric power relationships. The more powerful are going to define the codes of ethics; they do not give anybody any enforcement rights. You cannot go to a court and say, “I want to enforce a code of conduct”, because no law of any kind has been breached. There are issues around adjudication and enforcement. Before long, we will come back to the need for a legal framework.
I am also not convinced by the argument that it is up to the institutions. What can universities do? They are hungry for external money, and will persuade and pressurise academics to get it. Beyond that, they are not really interested in how the academic negotiates publication. They cannot deal with that. Then the academic is left on his or her own versus what the funder desires. Academics may well have spent a long time on their research but they will have nothing whatever to show in terms of any publications, dissemination or conference presentations. They are left on their own versus a very powerful provider of research. The Bill does not do much on this issue either.
The Minister said that this amendment could have a chilling effect on research grants. I do not see how. Let us say that two parties want to negotiate on some blue-sky thinking, develop some new technology to manufacture engines or whatever, and want to consult an academic. If it is agreed that this kind of research would be confidential, that is fine. Nobody is interfering with that. The point is about what your research findings show. For example, imagine somebody is looking at the effects of living in poor housing and suddenly discovers that a two year-old child is breathing mould and is therefore likely to be disabled for the rest of his life. What should they do? Should they be quiet? At the moment, they can be silenced by the landlord. I am giving people freedom. I am saying that they should have the freedom to communicate that living in those kinds of housing conditions is damaging and can kill people. However, the response I am getting from both Front Benches is, “We can’t have that”. That is unacceptable. People reading this debate will see that it is unreasonable. How will we eradicate the conditions that I have just described for people living in poor housing? I have not heard anything in this debate to offer me any comfort on this point.
Nevertheless, I am grateful to noble Lords. Since both Front Benches are opposed to my amendment, or at least do not fully support it, I have no choice but to withdraw for the time being. However, as and when an opportunity arises, I shall return on this issue.
The Deputy Speaker (Baroness Henig) (Lab)
Before we continue, I must just correct the record on the recent vote on Amendment 22. There were some technical difficulties and the numbers were slightly different from the ones I announced previously: it was 218 Content, not 213, and 175 Not-Content, as against 172. For the record, the correct figures should be 218 Content, 175 Not-Content.
Clause 5: General functions
Amendment 24
Member’s explanatory statement
This clarifies that the new function conferred on the OfS enabling it to identify good practice in freedom of speech matters and to give advice about such practice is not directed at giving guidance to providers about how to discharge their new duty to promote the importance of freedom of speech.
Baroness Thornton
Member’s explanatory statement
This amendment would make provision for collegiate universities, making clear that a governing body of a college – rather than their overarching provider – should report information under Clause 9.
Baroness Thornton (Lab)
My Lords, we have three amendments in this group, which have been proposed by my noble friend Lord Collins, with the support of my noble friends Baroness Royall and Lord Blunkett. They pick up some of the questions that were raised in Committee about transparency and proportionality with regards to overseas funding.
Amendment 26 would make provision for collegiate universities, making it clear that it is the governing body of a college, rather than its overarching provider, that should report information to the Office for Students under Clause 9.
Amendment 27 is intended to make the OfS power to gather information more proportionate, and to prevent commercially sensitive information being subject to a freedom of information request through the regulator having requested it. Several colleges and universities have contacted us about this matter, as I am sure is true for other noble Lords, so it is important that this be clarified at this stage.
Amendment 28 would prevent universities having to disclose sensitive commercial information to the OfS, and prevent independent trading entities—for example, the university press—being forced to violate commercial contracts not governed by UK law, because, of course, many of them have contracts with overseas organisations and institutions.
That is a summary of the amendments, and as my noble friend Lord Collins said at Second Reading or in Committee, the key to addressing these issues is transparency and ensuring that that transparency is proportionate. I could quote to the House many of the problems that have been outlined to us by others who are concerned about this, but because Clause 9 explicitly includes commercial partnerships, it is vital that the Government take on board these concerns and explain, on the record, how they will be dealt with, or provide clarification at the next stage of the Bill. I beg to move.
Baroness Royall of Blaisdon (Lab)
My Lords, I support these Amendments. Amendment 26 is self-explanatory, and it would be great if the Government could clarify that the governing body of a college, rather than the overarching university, will be responsible for reporting information to the OfS. It would be very good if the Minister could put that on the record today in Hansard.
Lord Patten of Barnes (Con)
My Lords, I will speak in support of those observations. I speak at a university that is in receipt of an extraordinary stream of revenue from its academic press. I think it is true to say that it has the largest academic press in the world, which is hugely successful and is a very large international business. I am puzzled at the suggestion that the contracts it negotiates elsewhere are likely to have an effect on freedom of speech and the associated freedom of inquiry at the university itself.
One reason why the university press is covered is that it is part of the university—and it is part of the university precisely to stop that sort of thing happening. So I very much hope that we can have some clarity on this and get an assurance that there will not be any question of commercial fishing trips with university presses. It is incredibly important that they are allowed to go on firing on all cylinders and doing as well as they do at present. The Oxford University Press, for example, sells 2 million copies of the Oxford English/Chinese dictionary every year in China and has huge sales of academic books in Shanghai. Our China Centre has not been prevented from teaching people about what is happening in Xinjiang, Tibet or elsewhere. So I do think we need to be careful about how we address this issue and, at the very least, as the noble Baroness has just said, make it absolutely clear that fishing trips through FoI requests are out and that the Government would not seek to get involved in what could happen commercially unless there were some evidence that freedom of inquiry or speech had been compromised.
Lord Wallace of Saltaire (LD)
My Lords, I hope that the Government will take this away, consider whether there is a way of adapting to some of the valid points made on these amendments and, if necessary, come back at Third Reading—when, I suspect, any further government amendments would be welcome.
I will briefly raise a question that I have already raised with the noble Baroness’s private office, which is how Clause 9 on overseas funding relates to a substantial clause of the National Security Bill, which had its Second Reading yesterday. It seems in some respects to overlap or possibly duplicate it. We have to be very careful about the potential to ask universities to supply further information, answer reports and weigh down their central administration. We already have the National Security and Investment Act, which lays down a number of obligations on universities, which they are fulfilling—justified but additional burdens. This Bill and the National Security Bill will potentially add a further layer of detailed reporting by universities to government, which I am not sure government will be entirely capable of handling. I wish to mark that before those two Bills pass: we should be very clear that they are compatible with and complement, rather than contradict, each other.
Having said that, the question of funding and student unions wants looking at. I was not aware that there is significant overseas funding for student unions. I suppose it is possible that the Chinese, Saudi or even Russian Governments could decide that covert funding of student unions would be a way to influence the British debate, so perhaps there is a half-justification for this. But these Benches, having talked to a number of student unions, are concerned about these small, underfunded bodies, which have a very rapid turnover of officers—as is their nature—having burdens placed on them that are heavier than they can cope with and are not justified by the situation. I mark that as a caveat and hope that the Government take it back for further consideration.
Baroness Barran (Con)
My Lords, I will address this group of amendments relating to overseas funding and the application of the reporting requirements to the regulator. Amendment 26, tabled in the name of the noble Lord, Lord Collins of Highbury, seeks to ensure that it is the governing body of a constituent institution rather than their registered provider that must report information required under Clause 9 to the Office for Students. This is rather complex, in that the duty of the OfS in Clause 9 is to be exercised via the existing regulatory regime for registered higher education providers. The OfS already has the power to obtain information from providers.
New subsection (4), which is the subject of this amendment, refers to Section 8(1)(b) of the Higher Education and Research Act 2017. This requires that there is a condition of registration under which the governing body of a provider must supply the OfS with information for the purposes of the performance of the OfS’s functions as the OfS may require. This is achieved by registration condition F3, as described in the OfS’s regulatory framework, which applies to providers and not to constituent institutions.
The approach in proposed new Section 69D of the 2017 Act is that the OfS may require the governing body of a provider to supply information about relevant funding received by the provider or “a connected person”. A connected person is defined in subsection (6) as including
“a constituent institution of the provider”.
The noble Baroness, Lady Royall, asked for clarification and I hope that that is clear. If it is not now, it may appear clearer in Hansard.
Baroness Thornton (Lab)
I think what the Minister said was quite clear, but the concern is whether that is a satisfactory way to proceed for collegiate universities.
Baroness Barran (Con)
As I said, it builds on the existing approach to regulation of constituent colleges.
Amendments 27 and 28, also tabled by the noble Lord, Lord Collins of Highbury, seek to reduce the scope of Clause 9. Amendment 27 would allow the Office for Students to seek information only where the OfS considered that there were reasonable grounds to suspect a breach of the freedom of speech duties. Amendment 28 would remove overseas commercial partnerships from the definition of “relevant funding”, meaning they would not be within scope of the clause.
New Section 69D(1) will require the OfS to monitor the overseas funding of registered higher education providers and their constituent institutions so that it can assess the risk which the funding may pose to freedom of speech and academic freedom in the provision of higher education. The only way that the OfS can monitor the funding is if it has the necessary information. The power to require such information is linked to the registration condition that already exists under Section 8(1)(b) of the Higher Education and Research Act 2017; that is, condition F3 as described in the regulatory framework that I have already mentioned. Clause 9 is not about the speculative investigation of individual contractual arrangements; it is about routine monitoring of relevant information, at a sufficient level of detail, but no more than that, to allow the OfS to monitor the risk to freedom of speech.
As I said before, Amendment 27 would limit the power to require information from providers to where the OfS considered that there were reasonable grounds to suspect a breach of the freedom of speech duties. That test sets a very high bar which could arguably never be met. The OfS would not be in a position where it could suspect a breach because it would not have evidence to support that. However, at the same time, the amendment would mean that it would not be able to require information that may provide such evidence, so this would be circular, resulting in the inability of the OfS to obtain information on overseas funding. That in turn would mean that the OfS would not be able to carry out its duty to monitor the risk to freedom of speech that overseas funding may pose. This would mean that new Section 69A would be ineffective and would subvert the whole point of the overseas funding clause.
I should add that the effect of the drafting of this amendment would not be to prevent commercially sensitive information becoming subject to freedom of information requests through the regulator having requested it, which I understand the intention of the amendment to be, noting that the amendment does not refer to that and focuses simply on suspicion of breach. In any event, approved fee cap providers are themselves subject to freedom of information requests, so disclosure of information to the regulator would not result in new exposure to that legislation, and, of course, the OfS already holds sensitive information about providers as part of its overall regulatory role—for example, financial information—so this will not be new.
As for Amendment 28 and the removal of commercial partnerships from the scope of new Section 69A, the Government are of the view that the funding received from such partnerships could pose a risk to freedom of speech and academic freedom. Accordingly, if we do not include commercial partnerships in new Section 69A, we would be leaving a large gap.
The OfS will decide on the level of detail that it will need as regards the information that it will require from providers, liaising with the sector as need be in order to determine that. The OfS will of course consider how to handle any sensitive commercial information that it requires to be provided, but, as I have said, it already holds sensitive information, so this would not be new.
I note that the noble Lord references in his explanatory statement that the clause may force a violation of commercial contracts not governed by UK law. My understanding is that commercial contracts are likely to contain a standard clause dealing with disclosure to regulators, so disclosure under the Bill would be covered by that.
As for the particular situation of a university press, which my noble friend Lord Patten of Barnes referred to, such a body will be in scope only if it is legally part of the provider. In that case, it would not be an independent trading entity. If it chooses to have as its legal status to be a department of a provider, as I am aware is the case for Cambridge University Press and Oxford University Press, it inevitably brings itself within scope of regulation as a part of that provider. I would be more than happy to follow up with my noble friend if he would like to progress that conversation or requires any further clarification on that point.
Baroness Thornton (Lab)
I am still not clear how the fishing expedition that the noble Lord, Lord Patten, mentioned would be avoided. That is the point here, is it not? There is a vulnerability and a risk. The Minister needs to explain that to the House—if not now, certainly before the next stage of the Bill—otherwise we will need to return to this. It is not at all clear to me how that risk is averted through the regulation that the Minister has explained.
Baroness Barran (Con)
Given the hour, I am more than happy to set that out in detail in a letter to the noble Baroness. I hope that will allow us to explain to the satisfaction of the House how this provision will operate and that the amendments—
Baroness Royall of Blaisdon (Lab)
My Lords, I am terribly sorry to interrupt the Minister’s flow again. I am very grateful to her for suggesting that she should continue the conversation with the noble Lord, Lord Patten, and for saying that she will write to my noble friend. However, if we still have deep concerns about this—I think we are right to be deeply concerned—I suggest that we come back to it at Third Reading, notwithstanding what the letter may explain.
Baroness Barran (Con)
I hear the noble Baroness’s request. I hope my letter will be able to reassure your Lordships that these amendments are not necessary.
Baroness Thornton (Lab)
My Lords, I think the Minister will understand that the House is still not satisfied that we are in a safe place with Clause 9. I hope we can achieve that before we get to the next stage of the Bill, but we may need to return to this at that stage. I beg leave to withdraw the amendment.
Baroness Thornton
“(1A) The appointment of the Free Speech Director is subject to a confirmatory resolution of the relevant Select Committee of the House of Commons. (1B) The person appointed as the Free Speech Director must present a report to Parliament no later than 31 December 2023, and once a year thereafter.(1C) The report must include an assessment of—(a) the impact the role is having,(b) the implementation of the Higher Education (Freedom of Speech) Act 2022, and(c) the state of freedom of speech at the providers encompassed by that Act.”
Baroness Thornton (Lab)
Noble Lords will know that we have galloped around the director of free speech’s appointment several times at Second Reading and in Committee. I thank the noble Baroness, Lady Bennett, and my noble friend Lord Blunkett for their support. The noble Lord, Lord Wallace, and I are obviously still at one in our concerns about this matter.
Amendment 29 would subject the appointment of the free speech director to confirmation by a Commons Select Committee and compel them to report to Parliament every year on the impact their role is having, the implementation of the Bill and the state of freedom of speech at the providers. This is important because if the Bill is to do what we want it to do—deliver protection and support for freedom of speech—then the director who is responsible for that, the regulator, should be accountable to Parliament. The fact that this person sits on the board of the Office for Students, and is therefore only the chair of the board accountable to Parliament for that work, is not satisfactory. This is too important to be delivered without having any accountability to Parliament for the director of freedom of speech, both on their appointment and the work that they do.
I am not going to repeat everything I said in Committee and earlier stages about this. I think this legislation was pre-empted by the appointment already being made—I am not absolutely certain it has happened yet, but I think that the interviews were taking place during the summer—and that is a shame, but we can rectify that to a certain extent by making this person accountable to Parliament. I beg to move.
Lord Wallace of Saltaire (LD)
My Lords, my name is on Amendment 30, which is an alternative version, and I wish to add my concerns. The Minister will know that there has been a lot of controversy about the overall public appointments process. There has been criticism in the press and from people who have been involved in acting as independent advisers on public appointments, in general and in particular.
The appointment of the current chair of the Office for Students was particularly controversial. There was criticism that the balance of the appointing committee appeared to be much more political than expert, and that the person appointed appeared to have no previous qualifications or expertise for the job, beyond having been a Conservative MP who had lost his seat and managed Boris Johnson’s campaign to be Prime Minister. That does not give us great confidence in the appointment of a freedom of speech champion; it also lessens confidence in the sector that the appointment process had been started so early. The Minister will be aware from the letter she had from a number of leading academics that this is one of their active concerns.
Given the particularly controversial nature of this appointment, if you want to achieve a degree of public confidence among those who will be affected by it in universities and elsewhere, it pays if it is seen to be a fair, open and reasonable process. That is not the case at present, and rumours of the sort of people who might be appointed—the names scattered around include those of one or two other Members of this House—would not at all assure the sector, so this is a particularly important process and appointment.
I ask the Minister to give us an assurance, as strongly as she can, that Universities UK, the Russell group and other stakeholders will be consulted about the process and the qualifications needed in such a person; that the appointing committee will be appropriate to the task to be undertaken; and that the Government will ensure, as far as possible, that the person appointed commands the confidence of those whom he or she will be regulating. That is not too much to ask but, against the context of what we have seen with public appointments in the past three or four years, it is a necessary ask. I hope she will be able to take us some way in that direction.
Baroness Bennett of Manor Castle (GP)
My Lords, I have attached my name to Amendment 29 in the names of the noble Lord, Lord Collins, and the noble Lord, Lord Blunkett, which was so ably presented by the noble Baroness, Lady Thornton. Having heard those two speeches, I will be extremely brief because the case has been very powerfully made. At this stage these are probing amendments, but there is a need for a strong response from the Minister.
As the noble Lord, Lord Wallace, said, there is very grave concern about the nature of public appointments in many areas. If you combine that with the very grave concern that has been expressed from all sides of your Lordships’ House about the Bill and its operation, it makes this a particularly crucial response from the Minister.
I also note that in Committee there was an amendment to put a sunset clause on the Bill. It was not my amendment, but I attached my name to it. It was not brought back so I have not pushed forward with it, but that would have been an alternative way of tackling this problem; in some ways it would possibly have been a stronger way. Given where we are now, at the end of Report, we need to hear some very strong reassurances.
Baroness Smith of Newnham (LD)
My Lords, I support the thrust of both amendments, but I am rising to add to my declaration of interests earlier. I noted my role as an academic at Cambridge University. I am also a non-executive director of the Oxford International Education Group. I neglected that because the previous declaration linked to what I was saying. I was advised by the clerks to pop up at some point today. I declared it appropriately in Committee.
Baroness Barran (Con)
My Lords, I will now address the group of amendments concerning the appointment of the new director for freedom of speech and academic freedom at the Office for Students. Amendment 29, tabled by the noble Lord, Lord Collins of Highbury, and very ably presented by the noble Baroness, Lady Thornton, seeks to impose extra requirements on the appointment of the director for freedom of speech and academic freedom and their role once in post. Amendment 30, tabled by noble Lord, Lord Wallace of Saltaire, similarly focuses on the appointment process.
As I said in Grand Committee, I want to be clear that
“the director for freedom of speech and academic freedom will be appointed in the same way as other members of the OfS board, by the Secretary of State under the Higher Education and Research Act 2017.”—[Official Report, 14/11/22; col. GC 751.]
Although this is not officially a public appointment, it will be done in accordance with the public appointments process. This will ensure the independence of the process.
It is not necessary to include the additional requirement of confirmation of the appointment by the Education Select Committee. Such confirmation is not required for other members of the Office for Students board more generally, including the chief executive and the director for fair access and participation, who has a similar level of responsibility. The only role within the OfS which has involved prospective appointees appearing before the Select Committee is that of the chair. It would therefore be disproportionate and an unnecessary level of scrutiny that would set an unhelpful precedent for appointments to both the OfS and other public bodies, including those outside the higher education sector.
As for the involvement of the higher education sector in the appointment through formal consultation—I am afraid I cannot comfort the noble Lord, Lord Wallace—which is envisaged under his Amendment 30, this conversely would threaten the independence of the role.
I turn to the proposed additional reporting requirements to Parliament in Amendment 29. There are already several provisions in the Bill that provide for scrutiny of the operation of the Bill once enacted. Under Clause 5, the Secretary of State can ask the Office for Students to report on freedom of speech and academic freedom matters in its annual report or in a special report. This report must be laid before Parliament. This is based on the approach in Section 37 of the Higher Education and Research Act as regards equality of opportunity.
Under Clause 9, the annual report must include a summary of information on overseas funding and conclusions on patterns and trends of concern. This is based on Section 68 of the Higher Education and Research Act as regards financial sustainability.
Baroness Thornton (Lab)
Can the Minister say whether the chief executive or chair could refuse to allow the director for freedom of speech to appear in front of a Select Committee? Could they say, “Sorry, there is no requirement for them to do that and we are not going to let them”, even if that Select Committee has asked for them to do so?
Baroness Barran (Con)
I am afraid that I do not strictly know the answer to the noble Baroness’s question, but that would go absolutely against the spirit of the way in which our public bodies and arm’s-length bodies engage with our Select Committees. I cannot imagine that would be the case, but I will clarify for her whether it is even a possibility and write to her on that point.
Lord Wallace of Saltaire (LD)
The reason why we stress the importance of this appointment commanding confidence is that, when we began with the Bill—in particular with the think-tank paper that fed into it—there was a sense of “There is a problem here; the universities are desperately left-wing and we need to control them.” Many of us start from the position, on the contrary, that our universities have a worldwide reputation and are among our country’s greatest assets. If we are to maintain that reputation and the quality of those assets, we need to make sure that those who regulate them work with them, not against them. Finding some way of making sure that this key appointment starts on the right balance, with the right relationship with those it has to regulate, is therefore very sensitive and important. However the Government do this matters enormously.
Baroness Barran (Con)
The noble Lord makes several important points, the first being the quality of our universities and the pride that we all take in that—the Government echo the sentiments he expressed about their quality and the global esteem in which they are held. We take this appointment extremely seriously, hence the fact that we are following the public appointments process.
The role of the regulator is very sensitive, as the noble Lord understands extremely well, and that is absolutely why there is the level of transparency and accountability to Parliament that I just set out. We take this extremely seriously, for some of the reasons the noble Lord expressed. The only point I might disagree on is that the driving force behind the Bill was a concern about freedom of speech within our universities, rather than a particular political angle, but we can perhaps discuss that outside the Chamber.
Most recently, the chief executive of the OfS went before the Education Committee as a witness in relation to controversial research content and free speech. If the focus of the appearance were to be on free speech in the future, the director for freedom of speech and academic freedom may well of course be involved with that.
Given what I have said, I hope that your Lordships agree that there are sufficient safeguards in the Bill as drafted to deal with these important points of concern. I hope that the noble Baroness opposite will withdraw her amendment.
Baroness Thornton (Lab)
I thank the Minister for that extensive explanation. We are probably 50% happy and 50% still worried, and part of the reason for that is that time has passed in terms of the appointment and so on, and the concerns expressed by the noble Lord, Lord Wallace, about how this has been achieved and why people might be worried about what the director for free speech might get up to and how they would do their job. It must be in the Government’s interest not to allow those concerns and worries to exist. I will of course withdraw the amendment, but I put on the record, as we have, that this is not where we would want to end up: we want more confidence in the system, rather than less. I beg leave to withdraw the amendment.
“(ca) after the definition of “the institutional autonomy of English higher education providers” insert—““member”, in relation to a registered higher education provider or a constituent institution of such a provider, has the same meaning as in Part A1 (see sections A1(11) and A4(4));“member”, in relation to a students’ union which is a representative body and not an association (see section 20(1)(b) of the Education Act 1994), means those whom it is the purpose of the union to represent, excluding any student who has signified that they do not wish to be represented by it;”;”Member’s explanatory statement
This amendment ensures that “member” (of a registered higher education provider, of a constituent institution of such a provider and of a students’ union) means the same in Part A1 and Part 1 of the Higher Education and Research Act 2017.
Higher Education (Freedom of Speech) Bill
Tuesday 13th December 2022
(2 years ago)
Lords ChamberRead Full debate Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 30-R-I Marshalled list for Report - (5 Dec 2022)
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, let me begin by thanking noble Lords for their important contributions during all stages of the Bill’s passage through this House. As we have debated, freedom of speech is critical to modern society and is the lifeblood of our higher education sector. This Bill will establish new mechanisms for ensuring that freedom of speech is properly protected.
The discussions we have had since the Bill was introduced in this House have resulted in important clarifications, which we debated on Report last week. For example, we discussed the very definition of freedom of speech. I am pleased that we have introduced amendments which make clearer what we mean by that term, referring to Article 10(1) of the European Convention on Human Rights as it has effect in the UK. I am grateful to the noble and learned Lord, Lord Hope of Craighead, for spearheading the discussions on this point.
We have also addressed drafting problems to which noble Lords drew our attention. We have avoided inadvertently giving alumni the same protections as current students. We have also clarified that the new power given to the Office for Students to give guidance on supporting freedom of speech is not related to the duty on higher education providers and their constituent colleges to promote the importance of freedom of speech and academic freedom. I thank the noble Lord, Lord Wallace of Saltaire, and my noble friend Lord Willetts for their amendments in Committee that brought these issues to light.
We have also made a breakthrough on an important issue. Building on the progress made in the other place, we have agreed to ban the use of non-disclosure agreements by providers and colleges in cases of sexual misconduct, abuse or harassment, or other forms of bullying and harassment. I thank the noble Lord, Lord Collins of Highbury, for tabling this amendment, which the Government supported. Significant progress has been made in this area in the last year, with many institutions signing up to the voluntary pledge not to use NDAs launched by the previous Minister for Higher and Further Education, my right honourable friend Michelle Donelan, in conjunction with Can’t Buy My Silence. I am sure this amendment will be celebrated when this Bill is brought back for consideration by Members of the other place.
I turn now to the provision which has generated the most discussion: the tort. Last week, the House decided to remove the relevant clause from the Bill. The Government will naturally reflect on this verdict and the arguments advanced to support it very carefully indeed. Of course, I am disappointed that noble Lords were not persuaded by the government amendments, which we tabled to ensure that a person could bring a claim only if they had suffered a loss and that claims could be brought only after a complaint scheme had been used. I will not repeat the arguments in favour of retaining the tort, subject to those amendments, as they have already been rehearsed at some length. However, Ministers continue to believe that those arguments have genuine force and validity.
On Report, the noble Baroness, Lady Thornton, raised some remaining concerns about the new powers of the Office for Students and how they might impact on commercial partnerships of higher education institutions, in particular university presses. I hope the noble Baroness has received my letter. If it would be helpful, I would be more than happy to meet with noble Lords who remain concerned to clarify those points, as needed. The noble Baroness also asked whether the Office for Students could refuse to give evidence to, for example, the Education Select Committee. We have spoken to the Office for Students, which has reassured us that it would co-operate fully with requests from Select Committees.
As a latecomer to this Bill, I have been struck by the level of engagement with it. That means there is a long list of people to thank—perhaps too many to mention by name. There has been an extraordinary number of constructive and helpful contributions, both during our debates in the Chamber and in discussions outside it.
These have included the noble Baronesses, Lady Thornton, Lady Smith of Newnham, Lady Garden, Lady Morris of Yardley, and Lady Chakrabarti; the noble Lords, Lord Collins, Lord Wallace of Saltaire, Lord Triesman, and Lord Hunt of Kings Heath; my noble friends Lord Willetts, Lord Johnson, Lord Moylan, and Lord Sandhurst; the right reverend Prelate the Bishop of Coventry; and, last but definitely not least, the noble, and noble and learned, Lords on the Cross Benches: the noble and learned Lords, Lord Hope and Lord Etherton; the noble Lords, Lord Grabiner and Lord Macdonald of River Glaven; and the noble Baronesses, Lady Shafik, Lady Deech, Lady Falkner, and Lady Fox of Buckley.
There are many other noble Lords on all Benches whose speeches in debate have lent weight to our proceedings. While we may not have been in agreement on all these issues, I am heartened that the constructive debate heard in Committee and on Report has fostered a consensus in this House on the need for this Bill. I thank all of your Lordships for your engagement.
Lastly, I would like to express my profound gratitude to the stalwart members of the Bill team: Sophie Cahill, Jamie Burton, Vicki Stewart, Zoe Forbes, Samer Almanasfi, and last but definitely not least, Suki Lehrer. Throughout the last six months, they have provided nothing short of superlative support to me and to my ministerial colleagues, my noble friends Lord Howe and Lady Penn, and who have worked long hours, never without a smile on their faces—sometimes virtual, on Teams. Ministers, and indeed the House, are in their debt. I also express my personal thanks to my noble friend Lord Howe. In my words, he has definitely done the heavy lifting on this Bill with his professionalism, concern and extraordinary attention to detail, which are all well known in this House.
We send this Bill back to another place with, I hope, the same ambitions as when it reached your Lordships’ House. We need to support a higher education sector in which students and staff are free to speak their minds and engage in contentious debates. I believe that this Bill has the potential to make a crucial contribution to that aim, and I wish it well.
Lord Wallace of Saltaire (LD)
My Lords, I thank the Minister. I also thank the noble Earl, Lord Howe, for the way in which he handled Committee and Report on the Bill, and the various consultations. It was a model of how Ministers should engage. We had a very constructive process with the Bill, for which I am, and all of us are, very grateful.
This Bill was drafted by the last Secretary of State but five. It was eventually inherited by the current team in the Department for Education, with what I dare say was an element of surprise as well as interest: it was, after all, initially drafted almost entirely by Policy Exchange through a range of papers, and Policy Exchange had based its analysis very heavily on American as much as British sources. There were therefore oddities in the Bill, which I hope we have ironed out as we have gone through.
Many of us were very much concerned about the potential for this Bill to damage university autonomy and extend state authority, including Members on the Conservative Benches and others. There are a number of areas in which we have made considerable progress on the defence of freedom of speech. For many of us, there is the removal of civil tort, not simply the reduction of the weight of the civil tort on universities. That remains to be sorted out in the Commons. I hope that the current ministerial team will reflect very deeply on whether to insist on its own amendment or to accept the amendment which a substantial majority in this House produced.
There is also the outstanding issue of the appointment of the new free speech champion. I very much hope that the Government will take particular care in finding a candidate for that position who will be accepted—possibly even welcomed—by the sector he or she sets out to regulate.
Still outstanding is the question of the degree of overlap between what is set out in this Bill, the recent National Security and Investment Act and the current National Security Bill. All of them impose new duties and new reporting requirements on universities, some of which have not yet entirely been ironed out, particularly for the National Security Bill—I hope we will be able to do that as it proceeds through the House.
I thank in particular the noble Baroness, Lady Smith, and the noble Baroness, Lady Garden, who took the burden when I was away for part of Committee, as well as our team, including Sarah Pugh in our Whips’ Office. I know that the Bill team must have worked extremely hard throughout this. One recognises that civil servants are often not thanked enough for the criticisms they accept and the burdens they undertake.
Our universities are a huge national asset. They are an important part of our soft power in the world and a major source of our international income. We all need to be sure, as we have done in considering the Bill and as we look now at the National Security Bill, that we do not damage our universities in dealing with some of the problems and threats which they face, sometimes from their students, sometimes from visiting speakers, and sometimes from foreign powers, because they are such a large part of what makes this country very special.
Baroness Thornton (Lab)
My Lords, I thank both the Ministers, the noble Baroness, Lady Barran, and the noble Earl, Lord Howe, and also the Bill team for their accessibility and friendliness throughout the whole of this process. I also congratulate the noble Baroness on her list of commendations of noble Lords who have participated, and wish to second that. Obviously, I need to thank my noble friend Lord Collins, who is probably on his feet in the Grand Committee, which is why he is not here. He did most of the heavy lifting around the Bill, particularly around the—for our part—unlamented Clause 4 and the non-disclosure amendment, which the Government accepted and for which we are very grateful indeed. I also thank Liz Cronin in the Lords office and our team in the Commons, Jonny Rutherford, Vicky Salt and Tim Waters, who provided us an enormous amount of support, which, as the Ministers will know, you need when you are in opposition and dealing with complex pieces of legislation. The stakeholders have also provided us with great briefings; of course, some of them are serving vice-chancellors and heads of colleges here in this Chamber.
The question at the outset was whether the Bill was necessary at all. The answer is that the jury is still out, but probably not quite as out as it was at the beginning of the process. I think we can say with some confidence that we are sending back to the Commons a piece of legislation that is much improved from the one we started out with. The reason for that is twofold. The Ministers and the Bill team engaged seriously all the way through this but this House also engaged in a non-partisan, cross-party examination of the Bill, and I congratulate noble Lords on that.
There are still some outstanding matters which will need further attention, such as the role of the students union, but also the issue that the noble Baroness referred to, which is Clause 8, previously Clause 9. I and my noble friend Lady Royall, the noble Lords, Lord Patten and Lord Wallace, and others raised the risk of duplicating security regulations and the risk that the Bill might pose to the business community, the commercial relations and the trading futures in which our universities have been successful.
I definitely welcome the Minister’s invitation to have a meeting, because I think the Russell group and others need to further discuss this whole matter, particularly when draft statutory instruments and guidance are under consideration. I am grateful to her for saying that. We were still being approached about this as late as last night, because there are still serious concerns among some of our academic community.
I add my thanks for what has been a really interesting Bill. It is slightly outside my normal remit of health and equalities, but I have very much enjoyed being the number two to my noble friend Lord Collins and working with noble Lords on the Bill.
Baroness Fox of Buckley (Non-Afl)
My Lords, while I hope the Commons will look again and restore some version of Clause 4 and material remedies for victims of cancel culture on campus, I am still really glad that we have passed the Bill. I think our deliberations have been worth while and even now are having an impact, so I thank all involved.
A highlight for me was when the noble Lord, Lord Collins of Highbury, made his “confession” last week that he had originally thought the Bill “not necessary”, but
“during the process of Committee and the dialogue and discussions … I was persuaded that there is an issue to address.”—[Official Report, 7/12/22; col. 222.]
That is a win, in my book. Credit, then, to those who have spoken so articulately on threats to academic freedom, but also to those who have been open-minded and listened. Does that not remind us of the gains of hearing all sides of a debate, the importance of free speech and why it is so valuable?
In another instance, I have a confession. The noble Baroness, Lady Royall of Blaisdon, was keen to correct any impression I had given that the University of Oxford was creating a hostile environment to academics who might oppose moves to decolonise classical music. I apologise if I was too sweeping, but I am in touch with music scholars who are extremely worried about the dogmatic atmosphere surrounding the classical music canon, disparagingly dubbed
“white European music from the slave period”.
They claim that the debate on the topic is toxic and mired in accusations of racism, so I enthusiastically welcome the University of Oxford’s insistence that this is just not true. Perhaps this shows that university authorities can be sensitised to the reputational damage of not defending academic freedom or their own academic staff’s reputation if they disagree with critical theory orthodoxies. That is a shift away from worrying only about the reputational damage of being mislabelled as bigots by campus activists, and I think the Bill has helped.
A final positive note: I was shocked last week when the UCU, the trade union of Edinburgh University, shamefully demanded that the university cancel the screening of “Adult Human Female” organised by their own colleagues, Edinburgh Academics for Academic Freedom and—not a good example of collegiate atmosphere. I was nervous that Edinburgh University would succumb. After all, it had only recently given into pressure to cancel the titan of Scottish Enlightenment philosophy, David Hume. But no, the university stood firm. The documentary will be shown at the university’s theatre tomorrow night, despite transphobic accusations—
Baroness Fox of Buckley (Non-Afl)
I do not know. I apologise; I am trying to be gracious.
Perhaps the debate we have had has already given authorities a bit more backbone, and therefore I congratulate and thank everyone concerned for allowing a freer spirit and discussion around academic freedom to take place, at least outside this place.
Baroness Bennett of Manor Castle (GP)
My Lords, in the interests of balance I will speak very briefly. It is important to say that there is not conviction in all parts of your Lordships’ House that the Bill is, in its current form, in any way necessary. Attempts to address some of the attacks on freedom of speech—including the influence of commercial sponsors and funders in universities, the impacts of casualisation, and low pay and insecurity for academics—were not allowed into the Bill, so not everyone is convinced that the Bill should go forward.
Baroness Barran (Con)
My Lords, perhaps I can acknowledge that, in the spirit of free speech, we have heard different perspectives in our final remarks. I pick up on the description by the noble Baroness, Lady Thornton, of the collaborative spirit and cross-party working, which make us all so privileged to work in your Lordships’ House.
Higher Education (Freedom of Speech) Bill
Tuesday 7th February 2023
(1 year, 10 months ago)
Commons ChamberRead Full debate Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 7 February 2023 - (7 Feb 2023)
18:23 - The House divided: - Ayes: 283 / Noes: 161 - Question accordingly agreed to.
The Parliamentary Under-Secretary of State for Education (Claire Coutinho)
I beg to move, That this House disagrees with Lords amendment 10.
Mr Deputy Speaker (Sir Roger Gale)
With this it will be convenient to consider Lords amendments 1 to 9, 11 and 12.
Claire Coutinho
Mr Deputy Speaker:
“Freedom is a fragile thing…it must be fought for and defended constantly by each generation”.
Ronald Reagan said those words in 1967. More than 50 years later, our generation is facing our own battle for freedom: the freedom to express our opinions and debate controversial ideas without fear or favour. Ironically, this is happening in our universities, which traditionally have been the very institutions that have challenged prevailing wisdom, from the effects of smoking to the theory of evolution and our understanding of climate change. That is why I am delighted to be here today to discuss the Higher Education (Freedom of Speech) Bill.
First, I thank my predecessors for all their work in taking the Bill through the House last year, and my ministerial colleagues for their efforts in the other place. This is a contentious subject matter, and I know they have spent many hours thoughtfully considering the points that have been raised on all sides throughout the Bill’s passage. I am pleased that, after discussions, noble peers have now agreed that there is an issue to address, as the noble Lord Collins of Highbury acknowledged on Report. I am grateful to peers for their careful consideration of the Bill.
Today, I ask my hon. Friends and hon. Members to consider the amendments made in the other place. I will address each set of amendments individually, beginning with the statutory tort, which provides a means by which individuals can seek redress through the courts if they believe that certain duties in the Bill have been breached. This measure will be critical to stimulating the cultural transformation that we need. I am grateful to Baroness Barran and Earl Howe for leading debate about the tort in the other place. In the end, the other place voted in favour of amendment 10 to remove the clause containing the tort from the Bill.
I assure the House that we heard very clearly the strength of feeling about the tort. Those feelings have rightly set the context for careful deliberation about the Government’s position now. I have spoken at length to leaders and academics in the higher education sector. I stand firm in my belief that the tort is an essential part of the Bill, and I disagree with its removal.
Munira Wilson (Twickenham) (LD)
The Minister will forgive me if she is coming to this point, but as a Liberal I believe passionately in freedom of speech, as I believe does she. The clause to allow statutory tort was removed by a Conservative former Universities Minister in the other place, with cross-party support. Does she agree that, rather than supporting and encouraging free speech, we risk inhibiting it? Cash-strapped student unions may not invite particular speakers for fear of legal proceedings that they would not be able to defend. Does she agree that she is actually working counter to her own values and beliefs?
Claire Coutinho
Having spoken to many academics and people in universities at the moment, I firmly disagree. They are the people who would like that sort of protection. They think it would give them a legal backstop to the duties that we are placing otherwise in the Bill. Let me reassure the hon. Lady that the Government do not want providers being taken to court without good reason and being forced to defend themselves against unmeritorious or vexatious claims. We do not expect that to happen. The tort has always been considered a backstop.
The vast majority of complaints should be resolved through the new, free-to-use Office for Students complaints scheme, or through the Office of the Independent Adjudicator for Higher Education. In practice, we expect its use to be relatively rare, but it is crucial because it will offer complainants an opportunity to bring a case where they feel that their complaint has not been resolved to their satisfaction by the OfS or the OIA. It will be useful on the rare occasions where a provider, for some reason, fails to comply with the recommendations made by the OfS or the OIA.
Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)
The problem with the tort clause is that it also applies to student unions and student associations, which were always free to invite people that they wish to invite along. Conservative clubs only invited Conservative MPs. They did not have free speech in the club per se; they were Conservative-minded and they did not necessarily invite Labour-minded people. But within the student union and the university as a whole, students were free to have clubs and societies that might be Labour clubs, Marxist clubs, further right clubs or whatever mix they wanted. That is enshrined in the Education Act 1994 and the judgment of Baldry v. Feintuck. The danger is that the tort affects those clubs and will have a chilling effect on student unions, which might say that it is easier for those clubs not to exist, and they will therefore fall out of regulation—
Mr Deputy Speaker (Sir Roger Gale)
Order. If the hon. Gentleman wishes to make a speech, he should put his name in. That was not an intervention.
Claire Coutinho
Respectively, I disagree with the hon. Gentleman. I do not think that would be the case. The Government are committed to strengthening the protection for lawful freedom of speech on campus, as set out in our manifesto. If providers fail in their duty to take steps to secure freedom of speech within the law, individuals who have suffered as a result should be able to secure real remedies, including by means of civil proceedings. For all those reasons, our position is that the tort should be reinstated in its original form for further consideration in the other place.
Amendment 3 was tabled in the other place by the noble Lord, Lord Collins of Highbury, and received support from all sides. It will prohibit higher education providers and their constituent colleges from entering into non-disclosure agreements with staff members, students and visiting speakers in relation to complaints of sexual misconduct, abuse or harassment or other forms of bullying or harassment. I believe that Members on both sides of the House will welcome the inclusion of this provision in the Bill. It can never be right to force a victim of sexual misconduct, bullying or harassment to remain silent, denying them the right to talk about what has happened to them even with their family or close friends. This does not come down to politics, in my view; it is about doing what is right.
Claire Coutinho
I will not, as I have to make some progress.
It is impossible to understand the full extent of this practice—by definition, NDAs too often remain hidden from view—but a 2020 BBC investigation found that nearly a third of universities had used NDAs to deal with student complaints. I agree with those in the other place, who proposed and supported the amendment, that we cannot allow this practice to continue.
Many institutions have already signed up to a voluntary pledge rejecting the use of NDAs in such circumstances. That pledge was launched by the previous Minister for Higher and Further Education and now the Secretary of State for Science, Innovation and Technology, my right hon. Friend the Member for Chippenham (Michelle Donelan), together with Can’t Buy My Silence. However, many institutions have not done so, despite strong encouragement from the Government. This amendment builds on the strong foundation of the Government’s work in this area over the last year and brings a legislative means to end this abhorrent practice for good.
It is important to appreciate that this is not a total ban on the use of NDAs. There are some circumstances where an NDA is appropriate—for example, to protect intellectual property or commercially sensitive information —but as I said, using NDAs to silence victims of this type of conduct is entirely wrong. I therefore wholeheartedly support this amendment. Not only is it vital for the welfare and wellbeing of victims, but by enabling them to speak out and provide information to others about their experiences, it will extend protections to students and others on campus.
I will now speak to the group of amendments concerning the definition of freedom of speech. There was much debate in the other place about whether the Bill would benefit from a more expansive definition of freedom of speech, and peers subsequently agreed a number of Government amendments to that effect: amendments 1, 2, 4, 5, 8 and 9.
Amendment 4 amends the provision in new section A1(11) of the Higher Education and Research Act 2017, inserted by the Bill, which previously set out what freedom of speech in the Bill includes. The amendment refers to the freedom
“to impart ideas, opinions or information… by means of speech, writing or images (including in electronic form)”.
That wording is derived from article 10(1) of the European convention on human rights and is also used in the Bill of Rights Bill. There is also a reference to article 10(1) of the ECHR, as incorporated by the Human Rights Act 1998. The drafting is deliberate in reflecting that freedom of speech in the Bill has broader application than freedom of speech in article 10, because students’ unions are not public authorities and are not subject to the ECHR.
The other amendments are consequential on amendment 4. For example, where previously the Bill referred to “ideas or opinions” in certain provisions, to achieve consistency, those references need to be changed to “ideas, beliefs or views”. These consequential amendments do not change the meaning of the original drafting.
There are also minor and technical amendments made by the Government to the Bill. Amendments 6, 7 and 12 clarify that the term “members” in the Bill does not include a person who is a member solely because of having once been a student of a provider or constituent institution. The term “members” is intended to include those who are not technically staff but are closely involved in university life—in particular, members of the governing councils of universities and also retired academics who are emeritus professors.
However, it became apparent from debate in the other place that some universities and colleges treat their students as members for life—for example, the University of Cambridge. As a result, the Government tabled these amendments to clarify that alumni of providers and colleges are not covered by the Bill. It is not our intention that providers and colleges should have duties that extend so widely, even to people who have no current relationship with them other than as ex-students. These amendments do not affect the position where a current student’s freedom of speech is wrongly infringed, in so far as they may still make a complaint about that even after they have left university.
Finally, amendment 11 distinguishes between new functions imposed on the OfS by the Bill. It will amend the power in new section 69A(2) of the Higher Education and Research Act 2017, inserted by the Bill, so that it refers to “how to support” freedom of speech and academic freedom, rather than “the promotion” of these values. The original drafting replicates section 35 of the Higher Education and Research Act 2017 about identifying good practice relating to the promotion of equality of opportunity.
However, that wording might lead to confusion that this power relates to the new duty on providers and colleges to promote the importance of freedom of speech and academic freedom that is in new section A3 of the 2017 Act, inserted by clause 1 of the Bill. I can confirm that it does not. The OfS will have a duty under section 75 of the Higher Education and Research Act to give guidance on how to comply with the duty under section A3. There is no overlap with section 69A(2). Accordingly, section 69A(2) is different, providing the OfS with a general power to disseminate good practice and advice on how to support freedom of speech and academic freedom. The amendment makes that distinction clear.
I hope my words today have provided clarity and reassurance on the amendments made in the other place. Once again, I thank Members of the other place for the time and scrutiny they gave to the Bill. Our opinions on the statutory tort differ, though, as I still firmly believe it is an essential part of the Bill and an integral part of ensuring that freedom of speech is properly protected in our universities.
Matt Western (Warwick and Leamington) (Lab)
Let me start my remarks with the word “otiose”. Occasionally the words that frequent a debate come to symbolise the essence of that issue, and for our debate on Lords amendments to the Higher Education (Freedom of Speech) Bill the word is otiose. It is not a word I had had the privilege of encountering before, but it is a word that will forever be linked to this Bill.
This legislation is now almost worthy of two candles in the making and baking. It is almost two years to the day that the former Education Secretary but five laid the foundations for the debate we are still having on how freedom of speech should be protected on university campuses. I deeply regret that we are still having that debate, not least because every hour of parliamentary time spent debating the Bill and its provisions is an hour not spent debating the real issues faced by students and wider society.
Danny Kruger (Devizes) (Con)
I would be grateful for some clarity from the hon. Member. He says that the whole Bill is otiose, but does he not recognise any challenge to free speech on university campuses in this country?
Matt Western
We are talking about the Lords amendments, and what is otiose is the debate that was had in the Lords specifically about the tort I am about to speak to.
Every time I visit a university campus, I not only talk to vice-chancellors and senior leadership teams or tour a new teaching block, but insist on meeting students. I meet them, often on my own, to hear their concerns—the unvarnished truth of what is happening on our campuses—and, above all, to listen to their priorities. I can categorically say that not once has a student ever told me that the risk to freedom of speech on campus is their most pressing concern. Why would it be when three out of every four students are currently worried about managing financially, one in four has less than £50 a month to live on after rent and bills, and 10% of students are using food banks to get by. These insights and statistics are all gleaned from a recent survey by the National Union of Students.
It is now a sobering 637 days since the Bill was introduced in this House—incidentally, the longest that any Bill sponsored by the Department for Education has taken to progress through the House since 2010—and during that period we have had three Prime Ministers and five Education Secretaries. The higher education brief has been bounced around the portfolios of five different Ministers like a political pinball but without the wizard—so much so that I find myself in the somewhat absurd position of debating a Bill about freedom of speech on campuses and academic freedom with a Minister for children, families and wellbeing.
Sir Desmond Swayne (New Forest West) (Con)
I know that students have all sorts of quite proper concerns about their budgets, but does the hon. Member not acknowledge that there is a tremendous problem with a form of totalitarianism that, instead of encountering opposite views and challenging them, simply tries to silence them? Is he not appalled by the fact that Balliol College—Wesley’s own college—banned the Christian Union, with all the dangers that Christianity might pose to those poor delicate students?
Matt Western
I thank the right hon. Member for his comments, and for the style and energy that he brings to such interventions. The cases the right hon. Gentleman has been talking about are exceptions. Indeed, Office for Students statistics show how few cases there have been. I was making a point about the amount of parliamentary time that has been devoted to this over two years when there are much larger issues at play on our campuses.
Sir John Hayes (South Holland and The Deepings) (Con)
The hon. Gentleman says these are marginal considerations. I do not know whether on the visits he has described—which sound picturesque, as well as being, no doubt, informative—he ever meets members of the University and College Union, because its survey on this matter found that 35% of academics self-censor for fear of the consequences of saying what they really believe.
Matt Western
I talk to members of all university communities of course, as the right hon. Member would expect: I talk to the senior leadership teams, UCU members, Unison members, those who are non-affiliated, and also students. I listen to all points of view across the piece. I am sure that occasionally the right hon. Member did not say what he would have liked to have said in a Cabinet meeting when in power, but that is the nature of how society works and there should be no difference between what happens on campuses and in wider society.
Anyone would think that the Minister’s colleagues have come to the fair conclusion that the Bill is more about political posturing than delivering on students’ priorities. Let me be clear for the record: this Higher Education (Freedom of Speech) Bill and its passage through both Houses is a product of a Government who are out of touch, out of ideas and out of steam. It has been a masterclass in how not to pass legislation.
Lloyd Russell-Moyle
Members opposite say the banning of the Christian union was a disgrace, but is there not a real danger with this Bill that all societies will be banned from campus because the university will not then have to worry about regulating them, so it will exacerbate the problem, not help it?
Matt Western
I thank my hon. Friend for his important intervention. He is absolutely right, and he and many others on our side made that point repeatedly in Committee about the unintended consequences of the Bill, which would have a chilling effect. Those are the thoughts of Lord Willetts and many others in the House of Lords as well, who made it clear that that would be the result, particularly among smaller institutions, that may be less familiar to certain Members across the House, which do not have the resource or capacity to be able to administer these measures.
Ministers are choosing to ignore the widespread condemnation of the tort from Members in this place, Lords, sector representative bodies, students, trade unions and academics. They are seemingly prepared to carry on regardless. As recognised by so many, the tort is a clause primarily in search of a problem, but perhaps that is the point for Ministers. It is otiose; that is to say it serves no practical purpose or result.
Put simply, the objections to the tort raised in the other place are damning. I am well aware that this Government do not value expertise or experts, but, my God, they should. Their predisposition towards certain right-wing think-tanks has cost this country dear, and in terms of legal matters, or indeed the tertiary education landscape, the intellectual heavyweights in the other place, comprised of former vice-chancellors, current chancellors, former Supreme Court justices, ex-Masters of the Rolls and many former Education Secretaries and universities Ministers, have a brain quotient that is certainly higher than two. Their collective experience dwarfs that of the current Education team, and for that matter my own experience. It is for that reason that I take very seriously the warnings and advice given by peers in the other place, and, importantly, not just from one party but from across the House. There is perhaps no other clause in the Bill that provokes such widespread condemnation as clause 4, allowing individuals and groups to sue universities for losses resulting from a university or student union failure to secure their free speech duties.
Speaking of brains, Lord Willetts, a former Minister for higher education, believes that the risk of legal challenges would be terrible for freedom of speech in our universities, as people are likely to keep their heads down, not invite speakers, lie low and stay out of trouble. In other words, the prospect of vexatious litigation will have unintended consequences.
Lord Grabiner, an eminent jurist, went further and feared that the clause could be used by
“well-heeled trouble-makers for whom the costs issue would be of no concern at all.”—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 709.]
That may all be well and good for well-funded free speech litigators, perhaps with the unlimited support of the Free Speech Union, but for small institutions and higher education providers in particular, it will be crippling. He poses the question we all want the answer to:
“Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?”—[Official Report, House of Lords, 7 December 2022; Vol. 826, c. 210.]
Perhaps the Minister can give us a satisfactory answer today.
Even if we agree with the principle of the statutory tort, it is totally unworkable in its current form. The ex-Master of the Rolls, Lord Etherton, identified two glaring deficiencies in the tort as it stands. First, it is not clear what level of loss or damage is required for a successful claim. Secondly, it is also not clear what category of persons is entitled to make a claim. Lord Etherton concluded that
“it is extremely difficult to see what kind of order a court could make in practice that would deal with the situation that has arisen in relation to the non-securing of freedom of speech.” —[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 706.]
That leaves the tort as both undesirable and unworkable.
As well as being undesirable and unworkable, the tort has the potential to be actively harmful to the promotion of free speech on campus and hence totally counter- productive, as I was saying a moment ago. The Russell Group has reiterated its warning that:
“Managing the potential for litigation would…likely create significant administrative and resource burdens without adding to the enhanced protections for free speech introduced by the new OfS complaints process.”
In other words, we could have the worst of both worlds: no liberalising effect on free speech on campus, but with all the associated costs of legal action.
One student union I heard from recently informed me that there is currently no budget allocated for paying for legal action. Legal advice would need to be paid for out of its reserves. To make matters worse, it claimed that it would also be impossible or difficult to obtain insurance for such legal action. In a sense, therefore, student unions will be doubly bound, being required to build up large enough reserves in preparation for fighting such lawsuits, while also having to engage in expensive legal battles. Using that money will inevitably detract from student welfare budgets, SU facilities and the much-valued nature of campus culture. I return, once again, to the ever-prescient question posed by Lord Grabiner in Committee in the Lords:
“Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?”
Jeremy Corbyn (Islington North) (Ind)
My hon. Friend is making an excellent contribution to this debate. Does he agree that the problem is that this will diminish the campus experience and the quality of university life for many students, and that those who can afford to relocate their activities to expensive private locations outside campus will do exactly that, while the rest will essentially be in fear of legal action and will therefore not be ensuring that there is a challenging intellectual environment on all our campuses and in all our universities, as ought to be the case?
Matt Western
I thank my right hon. Friend for his intervention. He is absolutely right that these sorts of events could go underground, with restricted access, and, because they will be displaced off campus, they will be beyond universities’ jurisdiction.
I could go on and on about the issues with the tort, but lords from across the House of Lords made them absolutely clear. Consistently attacked from numerous angles, from numerous sources and for numerous months, the Bill has taken two years just to get to this stage. It is flawed in so many ways, although that increasingly seems to be the hallmark of this Government. Even the Minister in the Lords, Earl Howe, was prepared to concede on making the tort a remedy of last resort and limiting it to those who have suffered a loss. In what is perhaps the shoddiest part of the Bill’s progress so far, the Minister before us is now asking us to disregard her own counterpart’s suggestions for improvement in the other place, in the light of no new evidence. If it did not have such potentially damaging consequences for students and universities, it would be ludicrous. It is for the reasons I have just outlined that Labour will oppose the inclusion of this undesirable, unworkable and counterproductive tort in the Bill in the interests of students, staff and even freedom of speech itself.
Gareth Bacon (Orpington) (Con)
I rise to support the Bill in general, and specifically to support the Government’s decision to reject Lords amendment 10.
It continues to be a matter of great regret that in a country like ours, it should be necessary to legislate to protect free speech, but we have reached a point where it clearly needs to be done. Freedom of speech is a cornerstone of any democratic society, and in a society like ours it should be a given. Throughout history, philosophers have understood that creativity and progress in a society depend on acts of intellectual rebellion, dissent, disagreement and controversy, no matter how uncomfortable they may be. To a very large degree, freedom of speech matters most when it is controversial, because this is how pre-existing thinking can be challenged and new ideas can develop. In a democratic and free society, discussion, challenge and debate are healthy, and our universities have traditionally been at the forefront of this battle of ideas.
As I stated on Second Reading, university should be a place where ideas are freely exchanged, tested and, yes, criticised. However, in recent years, free speech has increasingly been eroded, particularly on university campuses. I served on the Public Bill Committee and the evidence we took from eminent academics was deeply worrying, so much so that I really do wonder if the hon. Member for Warwick and Leamington (Matt Western) was actually listening. Evidence was given of the chilling effect in universities, where academics feel obliged to self-censor for fear of the consequences of daring to express views that do not accord with an increasingly intolerant monoculture.
One of our witnesses was Dr Arif Ahmed, reader in philosophy at the University of Cambridge. He informed the Committee, as my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) said, that a 2017 University and College Union survey found that 35% of academics felt obliged to self-censor. To paraphrase Dr Ahmed, many academics are not speaking their minds or pursuing important research, simply because they fear facing disciplinary action from their university or being ostracised by their peers. As Professor Matthew Goodwin of the University of Kent told the Committee, not only does the issue affect academics, but a quarter of students are self-censoring.
If academic freedom is under threat, so too is freedom of speech. Another of our witnesses was Professor Kathleen Stock; she was still at the University of Sussex at the time, but shortly afterwards she was finally hounded from her job after enduring an entire year of bullying, marginalisation and intimidation. In recent years, there have been repeated accounts of speakers whose views do not correspond with the prevailing monocultural mindset being disinvited from speaking engagements, of reading lists being censored, of publishing contracts being cancelled, of reputations being trashed, and of “safe spaces” being created in which nothing but the prevailing view is permitted to be heard.
The truth is that it is not about protecting delicate sensibilities from offence; it is really about censorship. After all, in a free society people can always protect their own sensibilities if they wish: by not going to the speech, by not watching the film, by not reading the book. Nobody is compelled to engage if they do not wish to do so, but when people are explicitly or indirectly no-platformed, those who take such decisions are not protecting themselves; they are denying others the right to hear those people and challenge what is said. That is exceptionally damaging. If dissent and debate can be silenced at university, they can be silenced elsewhere.
As I outlined at the beginning of my speech, I cannot support Lords amendment 10, which would delete clause 4. Clause 4 is what gives the Bill its teeth. Removing it would reduce much of the Bill to impotence; retaining it is crucial to securing the cultural and behavioural shift needed in our higher education sector. The Minister said:
“I stand firm in my belief that the tort is an essential part of the Bill.”
I entirely agree.
I will conclude by quoting George Orwell:
“If liberty means anything at all it means the right to tell people what they do not want to hear.”
George Orwell’s words remain just as apposite today as when he wrote them nearly eight decades ago. The Bill will protect that liberty, and I fully support it.
Layla Moran
I rise to speak in support of Lords amendment 3. I am frankly delighted that it has received Government support. It will do what I and others across the House have for some time been calling for, which is to ban the use of non-disclosure agreements by universities in cases of sexual harassment, sexual abuse, bullying and other forms of misconduct.
I thank everyone who has worked on the campaign. I thank Lord Collins for tabling the amendment; the right hon. Member for Basingstoke (Dame Maria Miller) and the hon. Member for Birmingham, Yardley (Jess Phillips), who have campaigned with me; and Zelda Perkins and Can’t Buy My Silence for their tireless campaigning over the years. More importantly, I want to thank the young women, particularly Ffion from the University of Oxford and everyone involved in the campaign It Happens Here—those brave survivors who have spoken out about their experiences.
My involvement began as the constituency MP for some of those young women, who first came to me in 2018 with shocking testimony about gagging clauses being included in agreements signed in the wake of an instance of sexual assault. One woman had to sign not an NDA—this is a critical point—but a no-contact agreement that prevented her assaulter from having access to her accommodation, among other safety measures. That agreement, which was meant for her safety, included a clause that prevented her from making any information public about the assault, or indeed about the investigation. It was so poorly explained that she took it to mean that she could not even speak to her GP.
Jeremy Corbyn
The hon. Member is making an excellent point. When the woman raised those issues with the university, how did it possibly defend the idea that it would offer such protection to somebody who had clearly been found molesting other students, harassing them or worse?
Layla Moran
I have since spoken to a number of heads and principals of colleges. Many are not defending such behaviour; they are often coming from a place of wanting to try to protect both students—it is often another student who is involved. It comes from a good place, but the consequence is frankly devastating. That is why Lords amendment 3 is so necessary.
The other element that needs to be improved in most colleges and universities is the complaints process itself, which is deeply flawed. All it does is cause young women —and those who have spoken to me have invariably been young women—to feel retraumatised as a result of the process that they have had to undergo. Because the safety measures were included, this particular young woman felt forced to sign the agreement. She was therefore silenced by a process that was supposed to protect her. Other students have told me similar stories. One said that the gagging clause
“felt like the icing on the cake of a ridiculous system that had let us down. The disciplinary process had failed to sanction a rapist, but was threatening us with sanctions if we talked about it.”
How on earth can that be right?
The pledge launched by the campaign group Can’t Buy My Silence, in conjunction with the Department for Education, was certainly welcome—76 universities have signed it so far, committing themselves to ending the use of NDAs in cases of this kind—but, like other campaigners, I feared that it did not go far enough. It was particularly concerning that there were no sanctions for breaking the pledge, and it was largely dependent on universities’ opting in. Oxford’s It Happens Here—Oxford is the university with which I have been dealing with the most—has noted which Oxbridge colleges have signed it. The Minister may be shocked, as I was, to learn that there are only four, three at Oxford and just one at Cambridge: three out of 44 colleges and one out of 33. Moreover, that is replicated in institutions throughout the country. The take-up of the pledge has been poor, which is why we needed the Government to step in with this legislation. However, I hope other Members agree with me that this should not apply only to universities, because the same thing is happening in workplaces all over the country, including charities and voluntary organisations.
This is, I hope, the start of something much bigger. Last year I tabled a private Member’s Bill which would ban the use of NDAs and confidentiality agreements by any organisation or institution in cases of sexual assault, harassment and bullying. We are looking for a vehicle with which to bring the whole shebang back; the Victims Bill may be one, but we are looking for others. My Bill —which I recommend the Minister to push to other Departments that have not quite got there yet—is modelled on legislation that has already been passed in Prince Edward Island in Canada. A similar Bill is making its way through the Irish Senate, and the Speak Out Act was passed in the United States in November, so we would be very much in line with similar countries.
I am of course pleased that the Government are now supporting this move in the context of universities, but I want to ask the Minister some specific questions. First, does it apply only to legally drafted non-disclosure agreements, or will it also cover no-contact agreements in the confidentiality and gagging clauses? It is worth pointing out that those are already non-binding legally, and would not pass muster if they were brought to court. By what mechanism can we ensure that these things will definitely no longer happen? For survivors, a gagging clause has just as much impact as any legally binding non-disclosure agreement. We know that such clauses have become boilerplate language in no-contact agreements between a survivor and perpetrator, and we must ensure that new legislation clamps down on this extremely harmful practice. Silence cannot be a condition for safety.
I would also like some clarification of the Department’s plans for implementing these measures—and, in particular, the timeline—and of how the legislation will affect existing NDAs that have already been signed by students. Will it be retrospective, or will it apply only to future agreements? The message to universities is clear, but these are specific questions that I am being asked by young women who have already signed these agreements.
The survivors who have spoken to me are being taught that their pain and their voice do not matter, and that the reputation of an institution is more worthy of protection that they are. We should be taking—and are taking—all possible steps, and wasting no time, to stop this happening. We all know that there is a difference between the time when an amendment is passed and the time when it is enacted. I urge the Minister please to pass and enact this quickly.
Finally, please will the Government back my private Member’s Bill? It is a Bill that mimics a Conservative party pledge in, I think, 2017. There is cross-party support for this across the House and it is now time to ban these non-disclosure agreements, not just in universities but in any workplace and, frankly, anywhere.
Miriam Cates (Penistone and Stocksbridge) (Con)
I rise to speak in favour of the Government’s motion to disagree with Lords amendment 10. As has been mentioned by other hon. Members, this Bill has been introduced because freedom of speech and academic freedoms are under threat in our universities. That has been well evidenced during the passage of the Bill and, as has already been mentioned, a recent report shows that 35% of British academics surveyed self-censor, and Office for Students data shows that 193 speaker requests or events at English universities were rejected in 2021, compared with just 53 in 2018. And of course there have been numerous high-profile cases of cancellation, including those of Helen Joyce, of the Israeli ambassador and of my right hon. Friend the Member for Stratford-on-Avon (Nadhim Zahawi) when he was Education Secretary. This Bill is clearly very much needed.
Paul Blomfield (Sheffield Central) (Lab)
I rise to oppose the motion to disagree with Lords amendment 10.
There ought to be a basis for cross-party agreement, as there was in the Lords. I sense from many of the contributions so far that there will not be cross-party agreement, and that wiser heads are not prevailing on the Conservative Benches—those wiser heads are being kept below the parapet.
I read the letter that the Minister circulated yesterday, in which she acknowledged that creating a statutory tort
“has been a contentious measure throughout the passage of the Bill”.
That is something of an understatement. She went on to acknowledge that, in what she must recognise was a thoughtful and serious debate in the other place, many peers had
“raised concerns that the measure would subject higher education providers, colleges and students’ unions to costly, time consuming and unmeritorious or vexatious claims”.
But in her letter she just brushed that aside, on the basis that she had spoken to many academics who agreed with her, which is a rather interesting example of cancel culture at work, as she casually disregarded views that do not fit with her own.
We should be clear in this debate that, on both sides of the House, we all strongly believe in freedom of speech within the framework of the law. We should particularly cherish it in our universities, but we should also recognise the difficulties associated with legislating to that end. The right hon. Member for Chippenham (Michelle Donelan), the former universities Minister and, as of today, the new Secretary of State for Science, Innovation and Technology, saw those difficulties for herself when she explained the Bill’s operation at the start of its long life.
The hon. Member for Orpington (Gareth Bacon), who is no longer in his place, said he is concerned that we have reached the point at which this sort of legislation is necessary. How we manage the rights and obligations of free speech has been a live issue of concern for many years, and not simply in relation to universities. That is why Parliament has framed the limits of free speech.
In a previous life, I was responsible for co-drafting the University of Sheffield’s code of practice to ensure compliance with section 43 of the Education (No. 2) Act 1986, and I oversaw its operation in providing a platform for speakers with whom I profoundly disagreed. There is an irony in that, because the Government soon came to regret the way the Act’s provisions were used to secure platforms for those with whom they profoundly disagreed, and they raised those concerns with universities and students’ unions.
Some of the invitations to speakers after the passage of the 1986 Act were made vexatiously by those who were more interested in testing the legislation, or in trying to create embarrassment for a university and its students’ union, than in the issue under discussion. The fact that 36 years on we are debating the same issue is a reflection of the difficulties of making laws in this area, and that is something we should think about carefully when there are good alternatives.
More recently, I served on the Public Bill Committee for the Higher Education and Research Act 2017, and I recall expressing my concerns over aspects of the Government’s proposals for the creation of the Office for Students. I argued with the then Conservative Universities Minister, now Lord Johnson of Marylebone, who made the case for the Office for Students as the way of regulating the sector. So I was interested to read his contribution to the debate in the House of Lords, where he argued that clause 4 was not only unnecessary but would “undermine the regulator”—the regulator that the Conservative Government have put at the centre of the higher education architecture in this country. He powerfully made the case that the OfS can deal with these issues more effectively than civil litigation by imposing
“conditions of registration on any provider that falls short of the enhanced duties created by this Bill.”
He went on to say that those conditions of registration provide a wide range of
regulatory tools…from simply seeking an action plan from a university…through to imposing fines on an institution if it does not deliver”.—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 716.]
I was also struck by the contribution of another Conservative former Universities Minister, Lord Willetts, who highlighted the role of the Office of the Independent Adjudicator, in addition to the OfS, in providing a “clear process” to which any student can turn with a concern about any potential suppression of freedom of speech. But far more importantly—this point has been made and Ministers would do well to pay regard to it—Lord Willetts argued that the provisions of clause 4
“could have exactly the opposite effect to the one intended.”
He set out two ways in which this might be the case. The first was that
“people who are thinking of…inviting speakers or organising events—
would be—
“inhibited from doing so for fear that they could potentially find themselves caught up in complicated and demanding legal action”.
I have to say that in a different way I saw that chill factor in operation as a result of the 1986 Act.
Secondly, Lord Willetts highlighted the costs of litigation and the uneven resources available to those taking and defending action, pointing out that there is a “real risk” for student unions that would not have the resources to defend themselves against litigation. As he said, student unions
“are an important place in which students with a wide range of political views have their first experience of organising debates, exchanging ideas and disputing.”—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 713.]
He pointed out that the “threat” of potential litigation that could bankrupt a student union would not serve the interests of freedom of speech in our universities.
So two former Conservative Universities Ministers—the two who have arguably had the most impact on our higher education system over the last 13 years—are both saying that the tort provided by clause 4 is wrong and both back Lords amendment 10. It did not stop there. Lord Pannick argued that effective regulation from the OfS is quicker and cheaper than civil litigation. My good friend Lord Blunkett, who has talked about his experience of being no-platformed as a Secretary of State, made the case that the tort will cause “more confusion” and “difficulty”. Lord Grabiner has been mentioned and, as somebody who should know, he said that High Court judges are less well placed than the regulator to deal with these issues. Lord Macdonald, as a former Director of Public Prosecutions, said that the clause, far from encouraging free speech, will have a “chilling effect”.
The case could not be clearer. Creating the tort would cause confusion, slow down redress, open the terrain to vexatious claims, waste resources, undermine the regulator that this Government have put in place and, above all, create a chill factor that would undermine free speech. We should come together tonight to reject clause 4 and support Lords amendment 10.
Danny Kruger
I rise in support of the Government and am pleased that they have decided to reinstate the clause that includes the tort. I was taken aback by the shadow Minister’s suggestion that such a provision was otiose. He suggested that there are much larger issues that the House should be debating. I think that this is where we see a real difference between our parties. The fact is that we think that few things are more important than the quality of cultural and academic debate in our country, and the context in which young people are educated and brought up. But a spirit of oppressive cultural conformity has taken root across the institutions of the United Kingdom and, worst of all, it has taken root in our universities, where freedom of speech should be protected.
Lloyd Russell-Moyle
I draw the House’s attention to my entry in the Register of Members’ Financial Interests. I receive donations from the University of Sussex to provide services for some of its politics students, and I received donations at my first election from the University and College Union. I am also a trustee at the University of Bradford student union, and we had our trustee board meeting today.
One worry for student unions, such as the one that I sit on in Bradford, is how we would manage this kind of law. Only a few years ago, the Prevent laws caused us real problems in relation to inviting speakers along to the university. I remember once trying to bring in a speaker who had served time in prison. We wanted him to talk to the students about the folly of his ways—the stupidity of radicalisation. The very best person to speak to students who are likely to be radicalised is probably someone who has been radicalised and has come out the other side. The paperwork that had to be completed for this speaker meant that the students from the Islamic society felt that it was just too complicated to do, so they backed off and self-censored.
The problem with the Bill is that all such student societies will self-censor. Students will say, “It is too complicated to invite a speaker in. It is too risky for student unions,” so they will just not be invited. There will be equal speech because there will be no speech. That is the reality of some of these clauses, particularly the tort element because it puts liability not only on trustees like myself—I am big enough and can take it—but on student trustees who are finding their way in the world. To put such liability on them so early on is rather dangerous.
The protections are already there in previous education Acts. We heard about the 1986 Act, as well as the 1994 Act, which requires student clubs to receive equal and fair funding across the board, no matter what their political persuasion. Those Acts have been tested in the courts. The settled situation is that if a Conservative society in a university student union wishes to register and receive money, it must be given the same opportunity to do so as any other society. If a society is prevented from doing so, it is likely to win in the courts under current legislation.
The problem with including a tort that does not require an element of proven financial damage is an ambulance-chasing solicitors charter. That is the reality. Any single grievance that does not have to demonstrate a financial impediment can of course whip up cases. Most student unions, like my own, which broke even just this year—in fact, we had a slight deficit because we are still recovering from covid at the University of Bradford, and student union activities were reduced and are only just coming back to full force—do not have the finances to fight these things, so they will settle.
Lia Nici (Great Grimsby) (Con)
I am somewhat confused, because the Bill is not designed to limit freedom of speech; it is actually there to protect it and to ensure that people are not cancelled—there have been some very high-profile cases of that. It seems to me that the hon. Gentleman and some of his colleagues misunderstand what the Bill is about.
Lloyd Russell-Moyle
I sat on the Bill Committee and heard the evidence. Some, which I supported, talked about the unnecessary nature of the Bill, much said it would be unhelpful, and a lot said it would impose a chilling effect. I have no problem with a requirement for free speech. I have no problem with, for example, allowing the Office for Students to determine these matters. In fact, I would like an appeals process to be part of that, which would strengthen the provision by allowing people to seek resolution. Instead, the evidence we heard on the tort aspect was that it would be chilling. Rather than take the risk, people would not do anything.
We know that that has happened before. Many Acts have been passed in this place that have had a chilling effect, meaning that people do not take action. I want to see vibrant debate in my universities. That has always happened, such as when University of Sussex students in the 1970s blocked the American ambassador from coming on campus until he condemned the war in Vietnam. Those activities are also about free speech; students’ ability to express their heartfelt beliefs and desires must be allowed as well, but such activities would be prevented under the Bill.
That is why I am against the Government’s move to reject the Lords amendment, although I welcome some of the other moves, particularly on non-disclosure agreements, that we put in initially. I wish the Government would come together with us to remove the tort clauses and to provide other appeal processes, so that people can seek proper justice that is not just about financial recompense.
Sir John Hayes
I refer hon. Members to my entry in the Register of Members’ Financial Interests in relation to the University of Bolton.
Learning is, through exploration, the discovery of truths. Of equal importance to the answers learning provides are the questions it poses. For the emergence of understanding is a process, not a moment—a journey, not a destination. Such is the delight of being inspired to know more that it provokes an open-mindedness to all kinds of possibilities.
That is the spirit that speakers across this House have enjoyed and recommended to us, and yet across universities that spirit is being frustrated by the kind of intolerance that, rather than opening minds, aims to close down debate. This Bill must provide a significant shield and a sword to those who are determined that universities remain places where ideas are discussed freely and can be tested through critical analysis.
W. B. Yeats said, “Education is not the filling of a pail, but the lighting of a fire.” We must not quench the fire of learning because we regard some ideas or views as contentious or controversial. Some may alarm. Some may cause offence. Yet without the ability to alarm and to disturb and to shock, there is no ability to inspire and to move and to enthral. They are two sides of the same coin.
The practitioners of intolerant identity politics have successfully cancelled a litany of students and academics who dared to espouse particular understandings of race, gender and sex—understandings, by the way, that are commonly held by our constituents—taken as read by most of the people we represent.
Those without wealth or influence to resist have too often been left at the mercy of the mob. It is a bitter irony that one academic who came forward to give evidence when we discussed the Bill in Committee, Kathleen Stock, was subsequently driven out of her job by a combination of militant students and weak-minded academics who refused to support her. She told us, along with my friend Arif Ahmed, that there is a climate of fear and a culture of silence, as academics self-censor for fear that what they say might leave them at the mercy of university authorities that use all kinds of techniques to silence them. So, this Bill is critical and the tort is critical to its effect.
Sir John Hayes
I happily give way to the hon. Gentleman, who served on the Committee.
Lloyd Russell-Moyle
When we served on the Committee, did we not agree that one thing this Bill lacked was security of tenure for academics—very rare now—which would provide a bulwark against a chilling effect? Is that not something we could seek agreement on?
Sir John Hayes
I agree with the hon. Gentleman on that, but, having declared my interest that I am employed at the University of Bolton, I had better not make too forceful a point about it.
Many more academics we do not know of will have faced similar pressures, in untold everyday stories of students and academics that, whether through fear or otherwise, go unreported or unresolved. That is why it is so important to reject the Lords amendment that would abolish the new statutory tort proposed in the Bill as it was originally drafted. It is disappointing that the academic establishment in the other place made a case against that—disappointing, but unsurprising, because of course these people look after their own. I am very pleased that, as my hon. Friend the Member for Devizes (Danny Kruger) said, the Minister has resisted those calls. She has shown determination, insight and, I must say, a degree of courage in doing so, because it is easy to roll over when the big beasts in the other place roar in defence of the academic establishment.
Jeremy Corbyn
I could not disagree more with the right hon. Member for South Holland and The Deepings (Sir John Hayes)—[Interruption.] It is not the first time—I understand that—and possibly not the last. The effect of the Government’s proposal to disagree with the Lords amendment will be what he spoke about: a diminishing of academic experience and variety of activities in campus life.
We have heard well-informed contributions from the hon. Member for Oxford West and Abingdon (Layla Moran) and my hon. Friends the Members for Brighton, Kemptown (Lloyd Russell-Moyle) and for Sheffield Central (Paul Blomfield), all of whom have direct experience of what goes on in their local universities and other universities. The fear of legal action will cause a chilling effect on societies, organisations and part of the student union when inviting speakers. That is surely a bad thing.
Is it not the principle of going to university that a person—usually a young person—gains the experience of a wider academic, intellectual environment? As the hon. Member for Penistone and Stocksbridge (Miriam Cates) pointed out, there have been many controversial debates on university campuses over a very long time. I do not have a university degree—I did not graduate—so I do not know what that experience is like, but I do visit many universities and speak at them often, and I find that the challenging debate changes over the years.
In the ’70s, raising the issue of climate change was seen as wacky—it was way out there; something that people would not even think about—but gradually, over the next decade or so, the idea that what we were doing to the environment was seriously damaging to life on this planet gained traction, more debate happened, and so on. Those speakers were probably deeply controversial at the time. Now, it is the other way around.
Jeremy Corbyn
I will come to the hon. Lady in a second. Now, the climate change deniers are seen as controversial in the same way. Although I have a view of my own, I am quite happy to listen to both sides, and I think that students should and must have that right and experience.
Jeremy Corbyn
I think the hon. Member for Great Grimsby (Lia Nici) asked first. I am a bit worried about this debate getting too excited. I know that you want to bring it to a conclusion very soon, Madam Deputy Speaker, so I will be brief.
Lia Nici
I have experience in universities, having been in education for 22 years and taught for three different universities. On the right hon. Gentleman’s example of climate change in the 1970s, is the difference not that the people who were debating it were not cancelled as people are being today?
Jeremy Corbyn
I am pretty sure there were people who tried to cancel them at the time. I was not at university and I cannot make any further comment on that.
My plea is simple. We have heard today from Members who have a lot of sensible and direct experience. The issues raised by the hon. Member for Sheffield Central are very important, including that of freedom of speech and the limits placed on it. At what point do we allow a fascist, a Nazi, to speak? At what point do we allow a holocaust denier to speak? Those issues are best dealt with by codes of practice, rather than by threats of legal action. Surely codes of practice in colleges and universities, and discussion and debate, bring about a better resolution than enabling those who can afford it to take legal action.
Student unions that are frightened and nervous about any action that might be taken against them simply go down the road of caution and reduce, limit and inhibit the student experience. Surely we want our young people to be brought up listening to and developing challenging ideas, and being inventive and creative. Surely that is what education should be about, not the straitjacket of being told what to think, what to say and what to know. It has to be that approach—[Interruption.] The right hon. Member for South Holland and The Deepings is waving his arms around. I am concerned.
Sir John Hayes
We think that, too. That is the very purpose of the Bill—to open minds, to open debate, to have free speech. We believe in what the right hon. Gentleman is articulating, so perhaps he should vote with us tonight.
Jeremy Corbyn
I am sorry to disappoint the right hon. Gentleman, but I cannot vote with him tonight because I think the Bill will have the opposite effect. I wish it were the other way around, but it is not. We should recognise that the Lords amendment is a good one. It would make the academic experience better, not worse, and it would be a good idea if, for once, we supported it.
Claire Coutinho
I thank all Members for their contributions and particularly eloquent representations. They have shown how important it is to the wellbeing of our society that we can agree to disagree, that we can debate controversial and unpopular ideas, and that we recognise that the only way to change people’s minds is to win arguments, not to silence them.
I have listened to the concerns about the tort. Those who speak about a chilling effect speak as if there is not already a chilling effect on campus. That is why we think it is such a vital legal backstop. The hon. Member for Warwick and Leamington (Matt Western) made the astonishing if not surprising claim that the Bill is not needed at all. He may wish to speak to his party colleague the noble Lord Collins of Highbury, who has said that, through the dialogue and discussions that he has had as the deputy Leader of the Opposition in the other place, he accepts the need for the Bill. I suggest that the hon. Gentleman has those discussions himself.
Matt Western
I am sure that Hansard will have recorded that when I used the word “otiose”, I was talking about the tort.
Claire Coutinho
I think there was some significant questioning of the Bill, and I suggest that the hon. Gentleman goes to speak to Lord Collins of Highbury in the other place. I commend the Government’s position to the House.
Question put, That this House disagrees with Lords amendment 10.
Higher Education (Freedom of Speech) Bill
Tuesday 21st March 2023
(1 year, 9 months ago)
Lords ChamberRead Full debate Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 104-I Marshalled list for Consideration of a Commons Reason - (20 Mar 2023)
Earl Howe
That this House do not insist on its Amendment 10, to which the Commons have disagreed for their Reason 10A.
Earl Howe (Con)
My Lords, I am pleased to be back again to debate the Higher Education (Freedom of Speech) Bill. I must express my thanks once again for the time and thought your Lordships have given to this legislation. Members of the other place were particularly happy to see the amendment banning the misuse of non-disclosure agreements in cases of sexual abuse, harassment or misconduct, or other bullying or harassment, as proposed by the noble Lord, Lord Collins of Highbury. I am grateful to him for tabling this amendment as a very positive addition to the Bill.
As your Lordships know, the tort has been by far the most contentious issue during the passage of the Bill, but the Government remain firm that it is vital for it to be included. I recognise that the decision of the other place to reinstate the tort as it was originally drafted, without amendment—including the government amendments that were tabled in this House on Report—has been of concern to noble Lords. I am very aware of the strength of feeling in this House regarding the tort clause. I have spoken to many noble Lords individually and listened carefully to the points raised during debate. Ministers have also had useful discussions since the Bill returned to the other place last month and have given further consideration to what form the tort should take.
Before turning to the amendment to the Government’s Motion tabled by my noble friend Lord Willetts, I shall set out once more the Government’s rationale for the tort’s inclusion and offer clarity on issues raised in recent ministerial engagement with noble Lords. I believe that the possibility of bringing legal proceedings is critical. We have said many times in this Chamber that, where issues cannot be solved satisfactorily by other routes, there should be an option to go to court. It is right that cases can be brought, and the court has a range of remedies at its disposal to achieve redress where it is concluded that that is appropriate.
The tort is a crucial part of the package of measures brought forward by the Bill to strengthen the law that protects freedom of speech, with a robust enforcement mechanism as a solid foundation for the new duties. Indeed, it is the view of some in this House and indeed of numerous academics and other stakeholders that, if the tort were removed, the Bill would not have the necessary force to bring about the cultural and behavioural shift necessary to prevent further erosion of freedom of speech on campus.
However, I also want to be clear that including the tort in the Bill will not create a free-for-all with cases being brought to court without due consideration. Indeed, we expect the use of the tort to be relatively rare, as indeed do those stakeholders who strongly support its inclusion in the Bill. The vast majority of complaints will be successfully handled by providers themselves, through the free-to-use Office for Students complaints scheme or via the Office of the Independent Adjudicator for Higher Education. Examples of where the tort may be used include where complainants feel that their complaint has not been resolved by the OfS or OIA to their satisfaction. In addition, it will be useful in the rare cases where a provider fails to comply with a recommendation made by the OfS or OIA.
There has been a suggestion that the inclusion of the tort will undermine the position of the OfS, but in fact the Bill will give the OfS new wide-ranging powers to investigate when higher education providers, colleges and student unions have breached their freedom of speech duties. It creates the role of director for freedom of speech and academic freedom, who will oversee the new free speech functions of the OfS. The tort is intended to complement those new powers, providing a backstop mechanism on the rare occasions when it is needed. We expect that the courts will generally be slow to overrule the OfS, as the expert in the sector, and the OfS will find any court rulings helpful in developing guidance and considering future cases.
Some noble Lords have expressed concern about the potential implications of the tort for student unions, which they think will not have the wherewithal, including the financial resources, to defend themselves against threatened legal proceedings. It is of course true that by bringing student unions within scope of the Bill, and by giving them new duties, they will become liable for breaches, but what is reasonably practicable for a small student union will not be the same as what is reasonably practicable for a large provider, an issue that the OfS and the courts will have at the forefront of their considerations. Examples of what is reasonably practicable include maintaining a code of practice, having a room-booking policy that covers freedom of speech appropriately and providing training to those who have a relevant role.
Other noble Lords have expressed concerns about student societies, a matter on which I believe I can also offer reassurance. As I have said, student unions will have a duty to take reasonably practicable steps to secure freedom of speech. Importantly, student societies will not themselves be subject to the duties in the Bill. However, those who run societies will be subject to the codes of practice published by their provider, college or student union. A failure to comply could result in disciplinary measures.
Similarly, if a student society is affiliated to a student union, those who run it will need to comply with the student union’s rules. Therefore, if a society is holding an event on student union premises, the student union’s room booking policies will apply, as well as the code of practice. Measures should be in place to ensure the society is aware of the rules that apply and that action can be taken if these rules are broken.
This point is crucial: a complainant would have no course of action against individual students or a student society. Although they may consider whether they are able to bring a complaint against a student union, the burden of proof will be on them to show that the student union has breached its duty to take reasonably practicable steps.
I also wish to address the point that some noble Lords have raised about the potential for the tort to create a paradoxical chilling effect, with providers, colleges and student unions avoiding holding controversial speaker events for fear of litigation. I want to be clear: the best way to avoid litigation will be not to cancel events but to take reasonably practicable steps to ensure that events can take place. There are provisions in the Bill that are intended to encourage a culture change on our university campuses, including a duty on providers and colleges to promote the importance of freedom of speech. A blanket policy of vetting all invitations and deliberately avoiding inviting any controversial speaker could itself constitute a breach of the duties under the Bill.
Finally, I turn to the amendment to the Government’s Motion, tabled by my noble friend Lord Willetts, which replicates amendments tabled by the Government on Report in the Lords. This House, carrying out its important constitutional function, opted to send a clear message to the other place that it should think again regarding the tort provisions. The other place, having thought again, has returned an equally clear message to this House as to the strength of its feeling that the tort should remain in the Bill. I note that, to emphasise that, it was willing to reinsert it without the government amendments tabled on Report in the Lords. In the light of that strong view, I hope the House will acknowledge that action by the other place and instead seek consensus on an outcome that rightly recognises that the tort should be retained but with some sensible amendments to clarify and reassure in relation to the implementation of the regime.
Indeed, I thank my noble friend Lord Willetts for his pragmatic engagement on this issue, particularly in his acknowledgement that the tort has a role to play in the new statutory regime. The Government take the view of the House seriously and therefore support this amendment to the Motion, assuming that it is moved, and I hope that other noble Lords will do so as well.
The amendments provide an opportunity to give clarity about how the tort will operate in practice. Our intention has always been that the tort should be used as a last resort, with the majority of complainants likely to rely on the free-to-use complaints schemes. Similarly, only those who have suffered loss should be able to bring a claim.
When the Government tabled those amendments back in November 2022, four months ago, the prevailing view from the sector and stakeholders was that they offered a good compromise. However, since then the issue has grown in importance, and controversy about the application of the tort has sharpened. It is only right that I share with noble Lords the concerns expressed to Ministers since this issue was last debated in this House, particularly from those the Bill is most designed to protect. In conversations with academics, we have heard serious concern that their freedom of speech is being quietly curtailed.
Given the strength of feeling from those who are genuinely concerned that their jobs are on the line and academic freedom is under attack, I have to be clear with noble Lords that this concern may well be reflected in a move in the other place to amend the Bill still further. I cannot presume to encroach on conversations or proceedings in the other place, but in that event it is only right that I commit the Government further to explore possible opportunities to achieve consensus in the Commons stages. I am therefore content to say that the Government support these amendments. But given that those academics are at the forefront of our minds, I am conscious that this matter may not yet be finally settled, should your Lordships agree to my noble friend’s amendments.
I hope that, alongside the assurances I have given today, noble Lords are persuaded that the tort is a vital legal mechanism that is necessary if we are to ensure that our world-class universities are the home of plural debate. I beg to move.
Lord Willetts
At end insert “and do propose the following amendments to the words so restored to the Bill—
“(2) A person may bring proceedings under subsection (1) only if—
(a) the person has brought a complaint relating to the same subject matter as the proceedings under a relevant complaints scheme, and
(b) a decision has been made under that scheme as to the extent to which the complaint was justified.
(3) Each of the following is a “relevant complaints scheme”—
(a) the scheme provided by virtue of Schedule 6A (the free speech complaints scheme), and
(b) the scheme for the review of qualifying complaints (within the meaning of section 12 of the Higher Education Act 2004) that is provided by the designated operator (within the meaning of section 13(5)(b) of that Act).””
Lord Willetts (Con)
My Lords, I declare my interest as a visiting professor at King’s College London and an honorary fellow of Nuffield College, Oxford.
I warmly welcome the Minister’s assurances about how this legislation will work. I particularly welcome his commitment, and that of other Members of this House, to support the amendments in my name. These amendments bear a striking resemblance to amendments the Minister himself tabled, which we debated on 7 December. It is evidence of his common sense and wisdom that he is supporting them now, as he did then.
I assure him that across the House, after many hours of debating this important legislation, there is shared agreement that there is a problem. Nobody is denying that there are egregious and appalling examples in which universities and students unions are not the safe spaces for free speech that we wish them to be. Sometimes people believe that they should somehow be a safe space from free speech, which is not what universities stand for.
There is also very strong support across the House for the Office for Students as a tough and effective regulator. I pay tribute particularly to my noble friend Lord Johnson of Marylebone, who early on intervened to make clear that it was the body that should have the crucial role in this case.
The issue has been about tort. As we were told, this is not the first time that Clause 4 has been the most controversial feature of a piece of legislation. Many of us had a real concern that the threat of civil litigation could have a chilling effect, threatening the activities of student unions in particular. That is why your Lordships’ House voted to remove Clause 4 from the Bill. The other place has reinstated it and we have to understand and respect that vote, but these amendments are a sensible compromise to clarify the circumstances in which the tort provision would apply. The litigant has to have sustained a loss and have exhausted other complaints procedures, notably the enhanced powers that this legislation gives to the Office for Students. I am very pleased that the Government have reiterated their support for those principles and recognised that this is how this tort provision should operate—very much as a last resort.
What these amendments would do is ensure that Clause 4 is very sensibly targeted. They would make it workable. In particular, they would remove the risk, which many of us on all sides of this House are concerned about, that a university, or even more so a student union, could find itself on day one receiving an investigation letter from the OfS and on day two receiving a lawyer’s letter threatening it with litigation. We thought that that was not a sensible or reasonable way to proceed, and indeed would obstruct the effective discharge of a regulatory function by the OfS.
I welcome the assurances that the Minister has given. The debate we have had on this legislation has been an excellent example of the role of your Lordships’ House as a revising Chamber. It has also reminded us of the shared values we have: a commitment to freedom of speech and diversity of opinion.
Lord Grabiner (CB)
My Lords, I confess to be rather miffed by the Government’s acceptance of the amendment of the noble Lord, Lord Willetts, because it deprives me of the ability to make the fire and brimstone remarks that I had planned to make. However, I certainly welcome the Government’s reaction to the excellent amendments of the noble Lord, Lord Willetts, and can as a result be quite brief.
On Clause 4, we have really come full circle and are back where we started. As has been pointed out, in our debates Clause 4 was subjected to many serious criticisms by noble Lords across the House, and I will not repeat them. In the face of those criticisms, at Report in this House the Government accepted a clarifying amendment from the noble and learned Lord, Lord Etherton, which incorporated a reference to damages in Clause 4. In a further attempt to meet these criticisms, the Government brought forward their own amendment, as the Minister has pointed out, which gave priority to the regulatory regime and deferred the ability of a private claimant to deploy Clause 4, pending those regulatory procedures being exhausted.
I respectfully urge your Lordships to support the amendments put forward by the noble Lord, Lord Willetts. As to those amendments, the loss point would clarify and emphasise the need for proof of damage as a condition for making a Clause 4 claim. It would deter some frivolous claims, and to that extent would be a valuable amendment.
The priority point in the amendment of the noble Lord, Lord Willetts, is perhaps rather more important. The OfS will have extensive regulatory powers for dealing with an offending student union. Clause 7 would amend the Higher Education and Research Act 2017, whereby the OfS would be obliged to monitor student unions’ performance of their new duties. Importantly, the OfS would also be empowered to impose a financial penalty on a student union and seek an injunction in court. Common sense suggests that the Bill would be significantly improved if priority were given to the regulator and claimants were not able to invoke the private law cause of action until the regulatory function had been performed and completed. This was the Government’s view just a few weeks ago, and I am absolutely delighted that it still is their view—at least in this House.
If I may, I want to briefly draw attention to the email from Ministers which arrived while we were in the Chamber but before this debate began. I will reference the end of the sixth paragraph, which is a point to which the noble Lord adverted when he opened this debate just a few minutes ago. The letter says: “Those affected by the Bill are at the forefront of our minds and it is only right that we reflect that the Government may wish to explore further opportunities to achieve consensus when it returns to the Commons”. The only point I want to make about that is this. The implication of what is said there, and of what the Minister said at the Dispatch Box, is that there may be amendments in the other place that will take away the amendment that I hope we are now going to support, possibly without even a Division. My concern is this: I believe that that would not be a sensible thing for the other place to do.
I would urge one point: if there are felt concerns in the other place that are not satisfied by these amendments, a more appropriate route to be undertaken would be directed towards the regulators, rather than to diminish the quality of the amendment that I hope we are about to make. The regulators are very powerful—they have strong powers in the statute and in this Bill. In my view, the correct party to be concerned with in dealing with the kinds of concerns that trouble everybody in the story, and the proper starting position, is the regulator. That is what the regulator is there for. It would not be right, in my view, to undermine the quality of the amendments that have been put forward in respect of this provision without first facing the possibility that the regulator ought actually, if I may be blunt about it, to pull its finger out.
Baroness Fox of Buckley (Non-Afl)
My Lords, I was all ready to welcome the restoration of the original Lords amendment to this Bill by the noble Earl, Lord Howe. Previously, I was despondent that we had passed legislation with no teeth, which was potentially a lame duck law, so I was delighted with the reinstated, stronger statutory tort in the Bill that would mean staff and students would have a robust backstop that allowed the ability to sue in the civil courts for breach of their speech rights. In explaining the change, the Minister said he has spoken to many noble Lords. But I am rather taken with the words of the Under-Secretary of State for Children, Claire Coutinho, who noted that she had spoken to many leading academics and that they shared her belief that the tort was necessary to secure cultural change on campus, and that that is why she had introduced the amendment I was prepared to welcome. I can ask only what on earth has changed, other than that the Minister has spoken to noble Lords rather than to leading academics or students.
It is disappointing that we are now being asked to accept a fudge, in the form of the amendment from the noble Lord, Lord Willetts. I fear it will mean that the new, enhanced free speech duties will be viewed as more box-ticking by university managers and student union bureaucrats.
Perhaps I can share my own recent lived experience—to use the fashionable jargon—of being cancelled. I hope at least my remarks will be heard by those in the other, elected place when they consider this debate. Last year, I was delighted to be invited by the University of London’s Royal Holloway debating society to give a talk this February. It was a lovely invitation, from a student called Ollie, who wrote: “We would absolutely love for you to speak to the society about your interesting career, and to talk about the Academy of Ideas and the House of Lords to our keen crop of debaters.” Never one to miss a chance to meet and talk to a keen crop of debaters, I set a date firmly in my diary and I reorganised a number of clashes.
Unbeknown to me—though this has become routine these days for student societies—behind the scenes the debating society had to go through onerous and bureaucratic checks imposed by the student union on whether I would be given permission to speak. Student unions these days have created a veritable cottage industry in safeguarding checks, risk assessments, et cetera. It was a complete pain for the students and time-consuming, and with an undoubted chilling effect on inviting outside speakers. That is what this Bill set out to address, was it not?
Eventually, I was given a clean bill of health by the student union. Apparently, there was no evidence that I was a hatemonger or a threat. However, just a week before I was due to speak, the debating society cancelled. What happened? Once the event was advertised, the same student union bureaucrats claimed that six societies had raised concerns about me coming on to campus, the evidence for which was that I retweeted a clip from a comic on Netflix. Maia Jarvis, the president of the student union, wrote a menacing message to the debating society, stating:
“I hope that you can see that Claire Fox retweets and praises a video of Ricky Gervais being overtly transphobic. I wonder if you have thought about the impact of bringing a person who is an advocate for hate towards trans people and publicly ridicules them. And whether you are comfortable with the fact that that is the message your society is sending out to RHUL trans students.”
Lord Lucas (Con)
My Lords, what the noble Baroness, Lady Fox of Buckley, has just said emphasises the main point I wish to make: that this applies to students just as much as to academics. The whole idea of freedom of thought is really important. We are bringing up our children to think that they must curtail their thought. I have a daughter at university at the moment and that is certainly her experience. The atmosphere of not being allowed to discuss and talk about things is prevalent. The Bill is really important in making a difference to that. I will be very interested to see what Members in the other place think of the amendments we send down to them.
We should not think that this is happening just in universities. On 8 March I received, as other noble Lords might have, an email from the parliamentary security vetting department asking us to fill in and sign a form. It said that we must not share passwords, override or undermine security measures and sensible things like that. But it then went on to say that we must not be offensive or put the reputation of Parliament at risk. I do not know how to survive in this place without doing both those things; I imagine that applies to other noble Lords too. Our freedom of speech is now to be curtailed by a directive from parliamentary security vetting without—so far as I can see; I have contacted the authorities without getting any reply—any way in which noble Lords can be involved in that process. I am not sure who will take me to task for being offensive in this place, but I find offensive the idea that I should be asked to sign saying that I will not be.
Lord Triesman (Lab)
My Lords, I am not sure that I am going to be offensive; I now feel that my presentation is lacking as a result. Let me at once declare an interest. I was the general secretary of the Association of University Teachers in times when the issue of—and necessity for—freedom of speech in universities was regarded as one of their paramount responsibilities.
I readily agree with the noble Lord, Lord Willetts, who said that that is fundamental to almost all of us who have been concerned with higher education. I appreciate what the Minister has said; this has been a very solid development. I also support the amendment the noble Lord, Lord Willetts, introduced, for much the same reasons as the noble Lord, Lord Grabiner.
I feel a sense of disappointment and sadness on behalf of the noble Baroness, Lady Fox. It is obviously never pleasant to be invited somewhere and then told you are not going to speak, but I urge her to get over it. The truth is that when you go into academic climates and start talking to academics, you are going to find—rather like with lawyers—that a large number will agree with you and a large number will disagree. They will tell you that with all the spitefulness, generosity and so on while they do it.
I have come across a lot of academics who want to make sure that the world of universities does not automatically become subsumed in a world in which people pursue litigation against one another, rather than try to resolve things through more sensible routes. It was bound to end in a reasonable compromise, and I think the Minister put that very fairly and very well.
In welcoming these developments, the academics who have bothered to get in touch with me have told me that the kind of change we are contemplating today is the kind they would find easiest to live with. They are more and more—probably in part because of the debates we have had—sympathetic and attentive to the problems that have been created by cancel culture. I used to cancel my own culture when I was a lecturer, largely by giving very erudite lectures on obscure mathematical problems. Very few people enjoyed them. There is only so much multiple regression you can hear about before you conclude that you should take yourself home because no one is going to be that interested, but it was what I was teaching.
That is why I say to the noble Baroness, Lady Fox, that of course some people will be uncharitable and malevolent, but it is something we can get past with a sensible compromise of the kind we have seen—particularly in the light of the reservations the noble Lord, Lord Grabiner, has about it.
Baroness Fox of Buckley (Non-Afl)
To clarify, as I stated earlier—this really is important—I do not have a right to a platform and I do not care if people disagree with me. I do not mind if students invite me and then disinvite me. All I care about is if students are bullied into disinviting me. It is for the students that I made the speech, not for myself. Who cares about my feelings? They are of no relevance.
My point is that many academics and students have looked to this Bill and the amendment. The noble Lord, Lord Triesman, has talked to people who want the compromise. I have talked to people who think it is a fudge. Let Parliament decide—fair enough—but I do not think anyone can claim they have spoken to all the academics, and this is the only answer. I think that this is a cop out.
Earl Howe (Con)
My Lords, I just say to the noble Baroness, Lady Fox, that strictly speaking there should not be any interventions at this stage of the Bill.
Lord Triesman (Lab)
Because we are not having that kind of iterative debate, I will refrain from making the point that I am not saying that I spoke only to academics who took the same view I might take. I am just saying that if you speak to academics, you will hear as many views as the number of academics you speak to; that is in the nature of the business.
I welcome the process we have gone through because it has alerted people to a very significant problem. A few days ago in your Lordships’ House, I heard somebody say that trigger warnings were now being attached to reading lists of some of the great classics from the English oeuvre. I was just about to embark on a re-reading of Northanger Abbey. If anybody has any advice for me about dangerous pages that I should avoid, I should be extremely grateful to hear it, because I would hate suddenly to find my entire spiritual underpinnings removed while reading Jane Austen.
This debate will leave a legacy. It will make everybody more attentive to the risks to free speech and academic freedom, and I am not at all sad that we have gone through the process if that is the outcome.
Lord Moylan (Con)
My Lords, I am conscious that, as a Conservative Back-Bencher loyally supporting the Government in season and out, I am probably a Member of this House worthy of least consideration when it comes to discussing the contents of this Bill. Despite my having taken part at every stage in its progress so far, I think I am forgiven for being somewhat confused.
We started out with a proposal for a statutory tort, which I am going to call “hard tort”. I turned out to support it, not only out of loyalty but because I strongly believe in it. On Report, recognising that there were some concerns about it, I had the privilege to table an amendment that had previously been tabled in Committee by my noble friend Lord Sandhurst, which would have retained the tort but allowed a judge to stay proceedings and instruct mediation to take place. I thought that a good compromise that could have been accepted, and I am going to call that “middle tort”.
However, my noble friend the Minister pre-empted me to some extent by coming forward with a proposal which allowed the tort to be accessed only after every possible complaints procedure had been exhausted; we might call that “soft tort”. Your Lordships’ House voted for “sort tort”, and then went with the noble Lord, Lord Willetts, and voted to remove the clause all together in addition, which we can call “no tort”.
Today I have turned out loyally, because I am encouraged to do so, in order to vote for “hard tort”. Here I am, and with only half an hour to go I see that the noble Lord, Lord Willetts, has now moved to the “soft tort” position and I am expected to give my support to it. So this is not simply a question of “how do you manage your team?”—that is a minor consideration and purely a whipping matter—but of what it is we are actually saying to the world with these goings on.
The noble Lord, Lord Triesman, said that the important thing here is that the Bill sends a signal to universities. It does in my view send a signal to universities: that this Parliament and this Government are not as concerned about how universities conduct themselves to maintain freedom of speech, as a principle and as an activity, as the Government originally said they should be. That is clearly the signal it sends, and as I have said before in Committee, strong emphasis is being placed on the role of the regulator because regulators are subject, wherever they appear, to capture by those being regulated. That is very much why those who support this, and the university leaders, are very comfortable with it.
Like the noble Baroness, Lady Fox of Buckley, I note that in the various choices between “hard tort”, “mid tort”, “soft tort” and “no tort”, at the end of this debate we will still have no idea. My noble friend has said that when it returns to the Commons, as it must, there will be scope for further compromise. Who knows what is going to come back—“hard”, “mid”, “soft”, nothing? Anything could come back to us from the Commons because clearly, the Government do not know what they want to do about this.
I strongly suggest to noble Lords that not only have we misconducted ourselves, as far as the management of this is concerned, but we are sending a very poor signal. It is most regrettable that we will agree to the amendment in the name of my noble friend Lord Willetts today. Like the noble Baroness, Lady Fox of Buckley, I very much hope that, when the Bill comes back from the Commons, someone will have found their backbone and the tort will have been restored.
Baroness Lawlor (Con)
My Lords, I apologise that I did not speak in the earlier debates on this matter because, as I recall, I had not made my maiden speech. I simply add my voice to those who regret my noble friend Lord Willetts’s Motion A1, which I do not support because, as other noble Lords pointed out, it waters down the small protection that existed with the original Clause 4 for academics in many institutions.
An institution has great power: it has powers of office, of man and woman power, of employment and of funds. The original Clause 4 gave a simple and cheaper way for an individual academic who was suffering because his or her freedom of speech was under threat. I assure noble Lords that it is under threat in many universities, and especially the one I know best: my own university, Cambridge. Hardly a day goes by without threat after threat reaching the newspapers of academic freedom being impinged on. I draw noble Lords’ attention to Arif Ahmed’s publications and submissions to an earlier Committee on the Higher Education (Freedom of Speech) Bill. The problem has not stopped.
For those reasons, I am worried about Motion A1 going through. It will make life much more expensive for individual academics, who often plough a lonely furrow against top-heavy and powerful institutions. I would like to restore the original Clause 4, which gives a straightforward and cheaper alternative to someone taking action against an institution. I do not believe that there will be vexatious causes that involve universities or institutions in long and litigious claims that cost money and time, because existing law covers these matters in many respects. Cheaper claims can be dealt with under protocols before action or by agreement.
So Clause 4 is necessary not only for free speech but for free thought. It is not just about student union bodies, although they should observe this; it is about how academics pursue their subjects and whether their reading lists and courses are in line with official thinking—universities have a powerful officialdom. For those reasons, I remind my noble friend Lord Willetts of his having to be smuggled into the University of Cambridge not many years ago. I do not believe that my noble friend’s amendment would prevent that happening again. I thank noble Lords for their attention.
Lord Wallace of Saltaire (LD)
My Lords, we have demonstrated that there remains a range of opinion about the nature and size of the problem, and the appropriate response to it. Therefore, a compromise amendment is perhaps the best point for us to end up at. Some of us feel that this is an unnecessary intervention into the autonomous institutions that are our universities, and conservatives are supposed to believe in the autonomy of institutions and in not promoting undue state interference. I remind those on the Conservative Benches that, if you are in favour of a smaller state and deregulation, particularly of banks and companies, you should be careful about how much you are in favour of detailed or excessive regulation of autonomous bodies like universities.
After all, our universities are very highly rated in global terms; they are an asset to this country. Boris Johnson, when he was Prime Minister, used to talk about them as one of the major planks of our soft power in the world. We need to be very careful that we do not damage them.
Listening to the noble Baroness, Lady Lawlor, I was thinking of my time as an undergraduate at the University of Cambridge, and the behaviour then was, in some ways, not entirely different from the way it is now. I recall the occasion when my wife and a number of other Oxford students prevented an ambassador from speaking at an Oxford student occasion, and of my first year as a university teacher at the University of Manchester, when a number of students blocked the Secretary of State for Education from speaking at a university event. These things are not entirely new.
As the Minister suggested, we have of course seen a number of cultural changes. While the cultural changes mean that universities have become more sensitive to student opinion because student funding has changed, another change is that social media has widened the debate about what is acceptable. It has imposed, from different directions, the new cancel culture among the young, which we did not have in my generation and in most of the time that Members of this House were at university. We all have to face that problem—it is not solely a university problem—and we have to answer it at the levels of political leadership and of society. I very much hope that, when the Bill returns to the Commons, the decision on this will not be reversed.
When we talk about culture, I am concerned about those who talk about a culture war. I have read two op-eds in the Sunday Telegraph in the last month which have suggested that the pursuit of a culture war is the way for the Conservatives to win the next election, and that they should imitate the example of Governor DeSantis of Florida, who is pursuing, so the articles argued, a successful culture war against wokeism, cultural Marxism and the universities of his state. I know that there are some on the right wing of the Conservative Party who would like us to go down that route, but it would be a very dangerous route. We do not want this country to become as divided a society as the United States has become, in which a governor educated at Yale and Harvard now says that he was exposed to communist ideas as an undergraduate at Yale—I suspect that that is a slight exaggeration—and who thinks that the way to ensure his path to a presidential nomination is by dividing the country between the educated and those who do not have higher education. We do not need that in this country, and it would be extremely dangerous for ring-wing Conservatives to try to take that direction.
On a different level, I find the argument that we should pass Bills so that we send a signal a rather worrisome idea; I think that we should pass Bills so that they actually do something, that they enforce something and that they change the way in which we behave. Sending signals is something which political speeches should do—not Acts of Parliament.
I ask the Minister about the time of the implementation of the future Act, now that the Bill has been delayed somewhat; it will clearly be delayed again by going back to the Commons. I hope that he can confirm that there will be no attempt to implement the Act in full by the beginning of this coming university year, because it will take universities some time to consider it. He may not be able to give me an answer at the moment, but that is an important fact that we now need to have addressed.
I hope that the Minister also takes note of some of the criticisms which the Committee on Standards in Public Life and others have made about the appropriateness of appointing committees. We heard the noble Lord, Lord Moylan, discuss regulatory capture, but we have also heard those who oversee public appointments committees talking about the inappropriateness of people who know very little about the subject for which a person is being appointed deciding on the nature of the appointment. There is a balance—which I hope the noble Lord, Lord Moylan, will accept—between regulatory capture and political appointments being made for political reasons, which is important when one is considering such a major asset to this country as our universities.
I welcome the Government’s acceptance of this amendment. I very much hope that the Common Sense Group and others on the right wing of the Conservative Party will not attempt to take it back when it comes to the Commons and that the Government will re-establish a relationship with our universities, both staff and students. The relationship between free speech for students and free speech for staff has, on occasions, been muddled in all our debates on this Bill. I hope, therefore, that this Bill as now amended will become law.
Lord Moore of Etchingham (Non-Afl)
My Lords, I listened with great interest to what the noble Lord, Lord Moylan, had to say and I sympathised with the anguish he felt as a loyal Conservative supporter trying to deal with the problem the Government have presented him with. As a non-affiliated Peer I do not have that problem, but I share his anxiety about what the Government have done as it seems very vacillating and unhelpful.
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.
Lord Collins of Highbury (Lab)
As a former trade union leader I am a bit hesitant to contribute, but let me just say to the noble Lord, Lord Moore, that what has been excellent about our consideration of this Bill from Second Reading through to Committee is how, through excellent scrutiny, we have tried to reach a consensus, not a compromise. That is the important thing. On Report I confessed that I had changed my mind about the need for this Bill. I accept that better, more effective regulation will help to change culture in a more sustainable way. All this emphasis on tort does not really help the real problem that we have heard described.
I will be brief. I appreciate the comments of the noble Lord on non-disclosure agreements—a key element in terms of openness and transparency. The duties and responsibilities of the regulator, and how they are applied, will be important; I accept that universities need time to properly do that. But they have been developing good practice and best practice. They have responsibilities to freedom of speech, and I absolutely support that. I stress that the Opposition’s approach to this Bill has been totally non-partisan. I have supported the amendment from the noble Lord, Lord Willetts. I have certainly encouraged him because I have listened across the board as we have moved through each stage, and I think we will end up with a better Bill. In fact, with the consensus that has been reached, we now have a better Bill.
Despite some of the Minister’s concerns about what might happen down the other end, across this House and across all political parties we have reached a consensus; let us put the matter to bed. With our non-partisan approach, I assure him that the Government will have the Opposition’s support on their support for the amendments from the noble Lord, Lord Willetts. We can safely say that this Bill shall pass, and it will pass to defend the freedom of speech values that we all share. That is an important step that we can make.
I hope that the Minister will feel reassured about our approach to this Bill and how we have listened, changed our minds and supported very important consensus changes, which I think will ensure that all academics and university institutions will support this legislation.
Earl Howe (Con)
My Lords, there is little more for me to say, other than to thank noble Lords for their contributions to this debate and for the way in which, amid many doubts and hesitations, Members of the House have been willing to look for compromise and common ground on what I know has proved a difficult set of issues.
I thank in particular the noble Lord, Lord Grabiner, especially for his positive comments and remarks on the role of the regulator, as well as my noble friend Lord Lucas, the noble Lord, Lord Triesman, and, for his words about the need for us all to look for consensus, the noble Lord, Lord Collins.
I simply say to the noble Lord, Lord Wallace, that I too instinctively fight shy of the suggestion that Governments should unduly interfere with the workings of our universities. However, some of his remarks suggested to me that he does not accept that there is a serious problem to be addressed. If that is his view, I believe that he is in a minority in this House.
Lord Wallace of Saltaire (LD)
I think we have a large social problem, which has been partly raised by social media, in the intolerance of the young as a whole and cancel culture. It stretches across our society and we have to deal with it, but it is not purely a problem for universities, nor is it thoroughly based in universities—and it certainly does not result from indoctrination by left-wing staff.
Earl Howe (Con)
I am grateful to the noble Lord, but I think we all agree that universities, par excellence, are places that should be safe spaces for freedom of speech, as my noble friend Lord Willetts said, whatever may happen outside the confines of the campus.
As to the timing of the coming into force of the Bill, I can tell the noble Lord that it will not be before the start of the next academic year. The Government need to consult on the regulations and indeed draft them, which will take a little time.
I simply cannot agree with the noble Baroness, Lady Fox, that my noble friend Lord Willetts’s amendments represent a fudge—in other words, a watering down of the tort or a “soft tort”, as my noble friend Lord Moylan put it. With respect to my noble friend, I utterly disagree with him that the amendments send a signal, or any semblance of a signal, to the other place or the world that the Government are not serious about protecting freedom of speech in our universities. The idea of watering down, I suggest, is more theoretical than real.
As I said earlier, the vast majority of complaints will be successfully handled and dealt with without any need to go to court. However, where a complainant believes that that has not happened, they will still have the option of going to court. In other words, the amendments from my noble friend Lord Willetts underscore what we think will happen anyway.
I hope that Members of another place will come round to that view and that both Houses of Parliament will reach the endpoint that Ministers and the Government have felt it their duty to try to achieve, which is consensus.
Lord Willetts (Con)
My Lords, I want briefly to reflect on the important points that have been made. First, I think there is widespread recognition that there is a problem. Of course I understand the problem; I have been on the receiving end of exactly the kind of threats to freedom of speech that this law is trying to tackle. I have seen student unions protect my right to speak and I have seen student unions collapse under pressure to not allow me to speak. I have seen universities that have done their best to enable me to speak, even with shouting and jeering and protests outside, and I have seen universities cravenly collapse under pressure to not allow me to speak. I am absolutely aware of the issue, as I think Members across the House are. However, at no point when I faced these protests did it occur to me that the way to solve the problem was for me to have the right to sue somebody. That is the issue: what is the best way to deal with the problem?
I have to say that the path of the past decades has been to increase the power of regulation. The noble Baroness, Lady Fox, made a passionate intervention that began with a description of the bureaucracy involved in trying to prove that she was not a hatemonger. I am speculating, but I think I know where that bureaucracy comes from: it is the Prevent initiative. I remember my conversations with officials in the Home Office who said to me, “There are extremists being invited to speak at universities and we need to have a process to make sure extremists who will stir up hatred are not allowed to speak”. I remember meetings with Home Office Ministers where, if I may say so, it is possible that I made some of the points that the noble Baroness made. But the pressure was, “We cannot allow an unregulated approach; we need to know who these speakers are so we can check if they’re potentially going to infringe the law”. That, I suspect, is the origin of the bureaucracy. That is where it started, over a decade ago.
The noble Baroness recently had the shocking experience of not being able to speak at Royal Holloway college. But I do think that here she does this legislation a disservice. Faced with the problems she encountered, is it really the case and is she really confident that suing the student union, which is where the legal process would have started—and, clearly, she had some sympathy for the student union and the pressure it was under—is the way to resolve the problem?
The Bill envisages—and I have to say that Ministers have made it clear throughout that this is the way they see the Bill working—that, if the noble Baroness encounters a problem such as that, her first port of call is the Office for Students. I heard in several interventions noble Lords say, “It’s a patsy”, “It’s producer capture”, “It’s the university friends”. I would invite noble Lords on all sides of the House to read, for example, the recent letter of complaint from universities about the OfS, saying precisely that it was too aggressive, that it was not working with them and that it was a heavy-handed regulator. The idea that the OfS is some kind of patsy that has been put up to put off any intervention is a complete misreading of the powers that it already has under legislation steered through Parliament by my noble friend Lord Johnson of Marylebone and that are now enhanced by this legislation.
If the powers prove still to be inadequate—if someone still has a grievance even after the Office for Students and the OIA have investigated a complaint—at that point they can go to law; that is what these amendments, originally proposed by the Government last year and now proposed and brought before the House by me and others today, ensure. That is not some feeble abandonment of a commitment to freedom of speech; it is the right way to proceed.
This legislation is a powerful further intervention; it makes the legal framework absolutely clear. It means that any Member of this House, or any citizen who faces a challenge to their right to speak at a university, will know there is someone at the OfS who has an explicit legal responsibility for protecting their rights to freedom of speech. That is a very powerful provision, rightly reinforced, but only if the regulator fails by a power of tort as well. Therefore, I hope the House will support the amendments in my name and in the names of others in this House.
Higher Education (Freedom of Speech) Bill
Tuesday 2nd May 2023
(1 year, 7 months ago)
Commons ChamberRead Full debate Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Message as at 2 May 2023 - (2 May 2023)
Mr Deputy Speaker (Mr Nigel Evans)
Financial privilege is not engaged by any of the items in the Lords message relating to the Higher Education (Freedom of Speech) Bill.
Clause 4
Civil claims
The Parliamentary Under-Secretary of State for Education (Claire Coutinho)
I beg to move,
That this House agrees with the Lords in their Amendments 10B, 10C and 10D; disagrees to their Amendment 10E, and do propose in lieu of their Amendment 10E Amendment (a) to the words restored to the Bill by Commons disagreement to Lords Amendment 10.
It is almost two years since the Bill was introduced to the House in defence of the fundamental principle that students and academics should be able to express their beliefs and debate controversial ideas without fear of repercussion. We return to the House to resolve the final element on which we seek agreement: the form that the statutory tort takes in the Bill. The tort is the measure that will allow people to bring civil proceedings where they believe that certain duties in the Bill have been breached to their detriment. Since I last brought the Bill before the House, the other place has accepted the inclusion of the tort in principle. That is a huge step forward and a significant victory for freedom of speech on campus.
In February, this House voted to reinstate the tort in full following its removal in the other place. In March, the other place accepted the need for the tort but sought compromise in the form of amendments identical to those tabled by the Government on Report. That is the wording of the clause that we are now considering.
I want to emphasise that this is a significant shift in the terms of the debate. We are considering no longer whether the right to go to court should be included but what form it takes. However, I recognise that colleagues still have some concerns, and I want to reassure them that the two Government amendments will mean that the tort retains its teeth and offers a concrete means of redress for those whose right to free speech has been unlawfully infringed.
Proposed new subsection (2) will make it clear in the Bill that “loss” is not limited to pecuniary loss. That means that academics will be able to go to court if they have suffered, for example, reputational damage or adverse consequences to the progression of their career. Subsections (3) and (4) mirror amendment 10E from the other place. New subsection (5) will ensure that, in circumstances where speed is essential, a complainant can apply for an injunction where there has been an alleged breach of the free speech duties.
I turn to proposed new subsection (2), which builds on amendments 10B, 10C and 10D as voted for by the other place. On 7 December in the other place, my counterpart Earl Howe stated on Report that loss is
“not limited to pecuniary loss and could include damage to reputation, for example.”—[Official Report, House of Lords, 7 December 2022; Vol. 826, c. 195.]
Subsection (2) simply makes that clear in the Bill. The amendment therefore reflects the original policy intent. I hope that offers reassurance to the House and that hon. Members will support its inclusion in the Bill.
I turn to proposed new subsection (5), which builds on amendment 10E as voted for by the other place as now included in new subsections (3) and (4). Amendment 10E would require claimants to have exhausted the complaints schemes of the Office for Students or the Office of the Independent Adjudicator for Higher Education before they can bring legal proceedings. Some hon. Members have expressed concern that that would prevent individuals from seeking an injunction where a breach of specified freedom of speech duties has already taken place and swift redress is sought. I share the view of many colleagues that access to the courts in those circumstances is crucial.
Subsection (5) will mean that a claimant who is applying only for an injunction will no longer have to exhaust the complaints schemes first. Those claimants will therefore have direct access to the courts. It is important to allow for that to avoid delays that may cause further harm to the claimant. If, for example, a student is expelled from their course because of a free-speech issue, it may take a long time to resolve their complaint, and damages would not be sufficient. The student would be seeking re-entry on to that course to continue their studies. In that scenario, subsection (5) will allow the student to seek an injunction from the courts as quickly as possible. I am sure the whole House agrees that that is sensible and justified.
Sir Julian Lewis (New Forest East) (Con)
Yes, it is an excellent change. The only question in my mind is why this rather obvious feature was not included at the beginning. Could the Minister look into that and—if not now, on another occasion—throw some light on it? It was an obvious flaw in the Bill.
Claire Coutinho
I thank my right hon. Friend. I think the fact that we have now included that in the Bill shows that we have worked with both sides to ensure that the Bill is as strong as possible. We have always had the academics, visiting speakers and students that it seeks to protect at the forefront of our mind.
I should reiterate that the provision concerns injunctions where there has already been a breach of the relevant duties. Where there is an anticipated breach of the duties, a claimant can apply for an injunction to prevent that—that has always been the case, since the requirement to exhaust the complaints scheme only applies in the case of an actual breach. It is important to note that we believe that this exception will apply only in a minority of cases, as most claimants will not seek, or have their case result in, an injunction. Nevertheless, we are sympathetic to complainants who find themselves in the difficult circumstances in which an injunction may be required. Further to this, we expect the OfS will take into account the implications of the amendment when drafting the complaints scheme rules.
I hope that the House will therefore accept amendments 10B, 10C and 10D from the other place, and agree with the Government’s proposed new subsections (2) to (5), which are consequential upon the amendments.
James Sunderland (Bracknell) (Con)
In recent weeks, we have seen a rather unedifying situation whereby Members from both sides of the House have been no-platformed by universities across the UK. In addition, Berkshire has several Facebook groups which purport to be in the public interest, but are actually used mainly by Labour activists to attack the Government. Comments made by Conservative councillors or those who disagree with the sites’ administrators are deleted, with some users even banned from the sites.
Cancel culture is odious, and I believe it exists because the Opposition do not want to hear the truth—they cannot face the truth. Will this Bill go any way towards dealing with cancel culture?
Claire Coutinho
I thank my hon. Friend, who has had his own experience of that in recent weeks. This Bill will not only strengthen the duty of our universities to ensure that they are protecting freedom of speech on campus, but create a new director of free speech, who will champion the cause, and strengthen the powers of the OfS to deal with those who breach that duty. I believe it will speak to my hon. Friend’s real concerns.
Matt Western (Warwick and Leamington) (Lab)
The last time I was here debating this Bill, I told the Minister that it had spent more time in Parliament than any other Bill sponsored by the Department for Education since 2010. Indeed, as defenders of free speech, Members would be forgiven for thinking the Government would be determined to see the Bill on the statute book. Yet 721 days—almost two years, as you, a maths connoisseur, will appreciate, Mr Deputy Speaker—have passed since the Bill had its First Reading, and it could have been further prolonged by the prospect of legislative ping-pong with the other place.
Here we are again. This time, we have the Minister, whose remit now includes university campus activity, rowing back on the compromise reached in the Lords. I am sure that this has been pushed by the Common Sense Group. I consider myself to be a member of whatever common-sense group this place may offer, but I am unsure whether we should be here again two years on. We need not be here, but heavy-handed legislative responses to largely exaggerated social problems—I am not saying there are no problems—appear to be this Government’s general modus operandi.
Sir Julian Lewis
It is a very serious step for anyone, particularly a student with limited means, to go to court and seek an injunction. Surely the hon. Gentleman can see that no one will do this on a whim. They will do so only when their rights are being seriously infringed.
Matt Western
I have a huge amount of respect for the right hon. Gentleman, as he knows. Of course I would be concerned about the case of an individual student, but I fear more generally about the tort being a channel for more vexatious claims by well-funded individuals or organisations, and where that may take us. I will expand on that point.
Where issues arise, Ministers have shown no interest in dealing with the underlying causes. I fear that this is yet another example of Ministers leaning in and exploiting cultural divides, opting for punitive, confrontational tools such as the tort before us. I have repeatedly stated the plethora of options open to the Government: the Chicago principles, the Robert French report, Universities UK’s guidance, internal processes and the Manchester and King’s guidelines—all of which would do a better job at resolving issues whenever they arise.
Miriam Cates (Penistone and Stocksbridge) (Con)
The hon. Gentleman mentions the cost of going to court and that that will be prohibitive for students and academics, but surely the opposite is true. At the moment, the only provision that students and academics have in the case of their free speech being cancelled is judicial review, which costs tens of thousands of pounds. The whole point of introducing a tort in a county court, for example, is that it is relatively cheap and relatively affordable for anyone.
Matt Western
As the hon. Member will know, the tort has been left in the legislation. A compromise was reached in the other place, so that is in the Bill, as far as we know. Our point is that we do not believe that an injunction is at all necessary. Indeed, it will complicate the process for all involved. The Minister will know that I was trying to reach her last week. I was keen to discuss this issue, because I wanted to seek some sort of understanding about what was going on, but for some reason we were not able to speak. I hope that we can do that in future, because I think that will circumvent problems.
To be fair to the Minister, she is clearly aware that colleagues have strong views on the issues linked to the tort—she said as much in her “Dear colleague” letter last week. Perhaps it is worth reminding ourselves of some of those views. Lord Grabiner, an eminent jurist, said that the tort could be used by
“well-heeled trouble-makers for whom the costs issue would be of no concern at all.”—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 709.]
That is the point I was making to the right hon. Member for New Forest East (Sir Julian Lewis). Lord Molyan, a Conservative peer, stated:
“the Government do not know what they want to do about this”.—[Official Report, House of Lords, 21 March 2023; Vol. 828, c. 1692.]
Universities UK, which represents 142 universities, stated:
“our position remains that the tort should not stand as part of the Bill.”
It feels that the original amendments amount to “sensible and acceptable compromise”. It was understood across the sector and in the other place that we had reached a point where the system was workable—they had reservations, but said they would accept the compromise. Given the Minister is clearly aware of those strong views, why has she not paid heed? In her letter, she encouraged us all to support the Government’s motion today, owing to
“limited legislative time to progress with further changes”.
It is pretty ironic for her to invoke the tight parliamentary timetable to push through her regressive motion, given the Bill has benefited from two parliamentary Sessions. We are here today, two years on, only because the Minister has reneged on the position accepted by Government Ministers in the Lords.
In her “Dear colleague” letter, the Minister claims that her motion provides the necessary reassurances on the issue, but she fails to mention that reassurances were already provided by Earl Howe. A satisfactory compromise —supported by Labour—was reached. Indeed, it might be deemed a model case in how to resolve competing interests, reminding us of the shared values we have in common:
“a commitment to freedom of speech and diversity of opinion.”—[Official Report, House of Lords, 21 March 2023; Vol. 828, c. 1685.]
Those are the wise words of Lord Willetts. Yet with this motion, the Minister seems to be reopening Pandora’s box, prioritising tabloid headlines about a permanent crisis in freedom of speech on campus, over and above cross-party consensus and good legislation.
On the two planks of the Government amendment, the first specifies sustained loss as including non-pecuniary loss. The first concession the Minister has made to her Back-Bench rebels is to put in the Bill that “loss” extends to non-pecuniary loss, such as injury to feelings and reputational damage. I understand that was always assumed to be the case by the Government, but the Minister felt compelled to assuage the concerns of Back-Bench Members that such damage could be excluded by the courts.
If non-pecuniary damage is to be a loss recoverable under tort in freedom of speech claims, the question arises as to how the loss will be calculated. That has important consequences for the costs of litigation for universities and student unions. The Minister will no doubt say that that is a matter for the courts but, in the interest of clarity, I would welcome the Minister setting out her understanding of how damages might be awarded for non-pecuniary claims in freedom of speech cases.
For example, will the director for freedom of speech and academic freedom or the Government be setting cost guidelines for the courts to follow; or is it the Minister’s expectation that the courts will follow pre-existing costs guidelines, such as those used in discrimination cases? It is worth flagging that, if the courts were to follow such guidelines, the most egregious cases of non-pecuniary loss arising from a breach of a freedom of speech duty could cost a student union or university up to £56,200 per individual claim, in addition to any further litigation costs, which I am reliably informed range from £75,000 to £125,000.
Members of the House may want to consider, in the context of their local higher education providers, how such costs may detract from the student experience, given the financial pressures across the entire sector. Such monies would be better used to support hardship funding and welfare support, given the rocketing number of mental health cases they are seeing.
The second plank relates to the opt-out of the last resort mechanism for injunction-only claims. The amendment creates an exemption from the last resort mechanism put in place by the Lords for claims exclusively seeking an injunction. It is worth noting that the underlying purpose of the last resort mechanism was to prioritise university internal processes, the Office of the Independent Adjudicator for Higher Education, the Office for Students Free Speech Complaints Scheme and the director for freedom of speech and academic freedom. The Government amendment potentially paves the way for that purpose to be inverted.
In effect, the amendment creates a perverse incentive for claimants to bypass the schemes created in the Bill in search of an injunction, including in anticipation of a breach. Was that unintended or intended? Regulatory investigations and internal processes rightly and understandably take time. When competing freedoms are at play, such care is to be expected. While the circumstances in which a court may grant an injunction could be narrow, for vexatious claimants with deep pockets, the amendment invites them to try their luck.
I note Lord Willetts sought to ensure the tort was “sensibly targeted” through his amendment, presumably to limit such vexatious claimants. Does the Minister believe her amendment opens the scope of the tort back up again? What justification does she have for doing that? Has the Minister met Lord Willets, a Conservative peer, to discuss this? I am sure he would welcome such a discussion. As for process, the Minister claims she is
“confident that this will not create a further burden on the courts”.
She plainly omits reference to the burden on institutions and student unions.
We all know that litigation is generally expensive and time consuming. It can soak up management bandwidth, detracting from the ability to focus on more important issues, most obviously the staff and student experience. Anything that risks an increase in the use of litigation in this context is therefore to be greatly cautioned against. In that vein, I urge the Minister to provide greater clarity on how her amendment will keep vexatious claimants at bay, will ensure the protection of institutional autonomy and regulatory processes, and will not expand the scope of the tort to the detriment of the student experience.
Miriam Cates
I admit to having a sense of déjà vu, because I think this is the third time I have made a speech defending the sharp end of the Bill—which is, of course, the provision allowing students, academics and visiting speakers who have had, or are about to have, their freedom of speech curtailed to bring a claim against a university in court. Most cases can, will and should be settled through the Office for Students’ complaints process, but that could take months. There will be circumstances in which quick recourse is needed, for example when a speaker’s event the next day is due to be cancelled.
The Lords have tried to remove the tort. They have tried to water it down with the requirement to exhaust the complaints procedure first. That is why I initially tabled an amendment for consideration today to ensure that students and academics could still apply to a court for injunctive relief if necessary. However, I am very glad that the Government have tabled their own similar amendment; I have withdrawn mine, and will of course be supporting the Government. I thank the Minister for her commitment to the Bill and its original policy aim, and to freedom of speech. It would have been easy for her to capitulate to their lordships on this matter, and it is to her credit that she has not only identified the damage that the Lords amendments would have done to the success of the legislation, but has actively engaged with academics, Back Benchers and ministerial colleagues to ensure that the Government defend their legislation.
Retaining the full use of the tort is vital to the success of the Bill. After all, the Bill’s aim is not to enable people to sue universities—no one wants that to be the mainstream course of action—but to deter universities from reneging on their free speech duties in the first place. Essentially, we want the Bill to have a deterrent effect to help universities to stand up to those who wish to cancel certain viewpoints by providing for clear boundaries and swift consequences if they fail in their duty to free speech. Facing a long Office for Students complaints process is no deterrent against cancelling an event due to take place tomorrow, but the potential for court action is. Creating a liability risk for universities that neglect their free speech duties is the most effective way to ensure that free speech is always factored, substantively, into decision making.
I am not a free speech absolutist, and of course there should be speech that is illegal, such as racist speech and speech inciting violence. Everyone should take responsibility for what they say, and I believe that anonymous speech is a largely detrimental development in today’s culture. However, the freedom to voice opinions and present evidence, however controversial those opinions and that evidence may be, is a foundation of democracy. Authoritarian regimes, not democracies, censor speech, and when mainstream, evidence-based views, such as the belief in the importance of biological sex or the belief that immigration should be limited—for which my hon. Friend the Member for Bracknell (James Sunderland) was cancelled last week—are being shut down in our universities, we have a problem that needs to be addressed. Our brightest future minds, the young people in our universities, deserve to have an education that helps them to become robust, inquisitive, and appropriately sceptical of new ideas. They will become robust only if they have the opportunity to hear a whole spectrum of opinions and ideas and to learn that being offended is not an injury but an opportunity to learn and mature. We do our young people no favours by pretending that they need protecting from ideas and facts.
The shadow Minister, the hon. Member for Warwick and Leamington (Matt Western), spoke about the mental health crisis that some of our students face. I agree that there is a crisis in mental health among our young people, but the American psychologist Jonathan Haidt links that crisis in mental health with cancel culture and the over-protection of children in schools and universities from viewpoints and ideas that might hurt their feelings. His book confirms my belief that being exposed early on to viewpoints that we might disagree with and want to argue against helps us to become robust and makes us less likely to be injured and have hurt feelings when we come across views that are different from our own.
Those are the kinds of people that we want to be the future leaders of society, and the culture that starts in the universities always makes its way into mainstream culture. That is the point of our higher education institutions, so the Government are absolutely right to protect their policy aim of ensuring free speech in universities. That will be to the benefit of everybody in this House across the political divide and of future generations. It does not just protect one particular viewpoint; it protect everybody’s viewpoint.
Claire Coutinho
I thank the House for today’s debate, which demonstrates the full benefit of open discussion and free speech. I will touch briefly on some of the points raised. The hon. Member for Warwick and Leamington (Matt Western) said that he thought this was driven by the Common Sense Group’s views, but in fact it has been driven by the conversations we have had with academics who have been targeted for sharing their views on campus. They are the people at the forefront of our mind. In our last debate, I suggested that the hon. Gentleman might like to speak to some of them. I would be delighted to relate my conversations with them, but I think he should speak to them as well.
The hon. Gentleman talked about how we would assess costs, and he is right to say that that is a matter for the courts. That is well established. He also spoke about the cost to universities, but it is very simple: if universities would like not to have to spend money on redress, they should simply uphold freedom of speech. He mentioned Lord Willetts, and like everyone whom the Bill concerns, we have been talking to people right across the spectrum as we have moved through this process, and I am confident that people will see that we have come to a good place in our amendments. He also asked whether the money would be better spent on the staff and student experience, but I ask again: should not the staff and student experience of university be one in which they are exposed to different views and can speak freely and debate controversial ideas? Is that not fundamental? That is exactly what the Bill is trying to uphold.
The hon. Gentleman asked about examples of where we might want to use an injunction. An example of where we might want to see swift redress is if a student has been kicked off their course and they feel that their freedom of speech rights have been impinged on. We would want to deal with that quickly so that they can get back on their course and resume their learning swiftly. That been widely agreed on in our conversations as a reasonable example.
I thank my hon. Friend the Member for Penistone and Stocksbridge (Miriam Cates). She is absolutely right about building young people’s resilience. Exposing them to different views is a key part of growing up, and it is something that we all use as we go into adult life.
We remain convinced that the right to go to court is crucial as a way of enforcing the new duties in the Bill and providing redress for those who have had their rights unlawfully restricted. I am thrilled that both Houses now accept that the tort should be part of the Bill. I believe that in accepting amendments 10B to 10D as agreed by the other place, together with the inclusion of the Government amendment we have discussed today, we will have reached the right position to ensure that freedom of speech and open debate remain central to university experience.
Question put and agreed to.
Royal Assent
Thursday 11th May 2023
(1 year, 7 months ago)
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