Higher Education (Freedom of Speech) Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

[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.

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[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.

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[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.

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[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.