Higher Education (Freedom of Speech) Bill

Baroness Deech Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[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.