Higher Education (Freedom of Speech) Bill

Debate between Baroness Chakrabarti and Lord Moylan

Committee stage
Wednesday 2nd November 2022 Grand Committee

[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.

Higher Education (Freedom of Speech) Bill

Debate between Baroness Chakrabarti and Lord Moylan

Committee stage
Monday 31st October 2022 Grand Committee

[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.