Higher Education (Freedom of Speech) Bill

Debate between Baroness Chakrabarti and Lord Grabiner

Committee stage
Monday 31st October 2022 Grand Committee

[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.