Higher Education (Freedom of Speech) Bill

Debate between Baroness Falkner of Margravine and Baroness Smith of Newnham

Committee stage
Monday 14th November 2022 Lords Chamber

[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?

European Union: Negotiations (European Union Committee Report)

Debate between Baroness Falkner of Margravine and Baroness Smith of Newnham

Monday 16th March 2020 Lords Chamber

[Baroness Falkner of Margravine (Non-Afl)]

My Lords, I agree with the EU Select Committee’s report and support the Motion in the name of the noble Earl, Lord Kinnoull. I was a member of that Committee until last summer and I know how carefully it strives to be as objective as possible. This report upholds that tradition of neutrality. However, I do not support the amendment to the Motion in the name of the noble Baroness, Lady Hayter, for reasons that I will set out.

The EU Committee’s report notes the change in the Government’s Command Paper of February to the political declaration of October 2019. Again, I agree that there is a change, but I point to the significant fact that explains that change: the event of a general election on 12 December 2019. This was contested on the basis that, if the Conservatives won the election, they would seek a very different settlement from Prime Minister May’s withdrawal agreement in terms of the sovereign autonomy of the United Kingdom. They won that election resoundingly, hence the hardening of the autonomy provisions in the UK’s negotiating position.

The Committee also notes the EU’s new hardening of its own position on provisions to implement a level playing field, almost predicating the deal on this proviso. This change of position has some history. During my time on the committee, we had several meetings with Mr Barnier through the course of the negotiations. The quest for a level playing field was there, but mainly in regard to market access for, for example, financial services. I recall one meeting in, I think, November 2018 when there was a robust exchange between us when I asked him why he thought the UK would wish to leave the EU if it would end up as a rule-taker with no rights but having to abide by EU rules. I remember his answer in the margins of the meeting, which was simply, “Well, it is your choice.”

Regulatory autonomy is particularly relevant at a time of rapid technological and economic change, which will undoubtedly impact the prospects for all advanced economies in the relatively near future, so dynamic alignment with EU rules in areas such as environmental protection and workers’ rights come at a time when most independent states will seek as many levers at their disposal as possible to mitigate the effect of job-displacing technology. In plain English, every country wants to do what it needs to do to protect the jobs and prosperity of its citizens. That is why carve-outs and exemptions exist in all trade agreements.

Regarding state aid, Mr Johnson, in his speech of 3 February 2020, detailed the enforcement taken by the EU against EU member states. He did so to prove that the UK is not front of the pack in diverging from EU rules. The UK, he said, was subject to four actions in 21 years, compared with 29 against France, 45 against Italy and 67 against Germany. The record speaks for itself.

A further change to the EU position not mentioned in the report is the reluctance of the EU to envisage a Canada-style CETA. Again, Mr Barnier’s sideshow, wheeled out frequently during the negotiations, had several levels of relationship on offer, depending on what the UK sought to do in its withdrawal agreement and future relationship. If we wanted untrammelled market access, we had to be in the single market and the customs union. At the other end of the scale was the Canada CETA as an ordinary third country. So it is surprising to see that once the UK has resolved to be a third country, the EU now discovers, three and a half years later, that we have a close geographical proximity and are a large economic power—which are the reasons it gives for why a Canadian-style CETA is inappropriate for us.

The UK position, reflecting the Government’s majority, can be summed up by the observation made by John Maynard Keynes: “When the facts change, I change my mind.” However, instead of a similar realisation that the facts on the ground have changed, the EU seems to move away from the political facts in the UK, its negotiating partner. However, I hope that these are just negotiating positions through which a consensus will emerge.

My objections to the Labour amendment are mainly in its seeking an analogous position to the European Parliament, not in its desire for greater scrutiny, which to a great extent I share. This comparison with the European Parliament has been a long-standing ask from those in the Lords and the Commons, and was promised by the Government in response to a question that I asked Mr David Davis in 2017 during EU Select Committee evidence sessions. I was surprised that he agreed to grant the committee that, and I continue to be surprised that the Lords continues to ask the question as the Government move away from that offer.

The Motion seems to imply that Parliament should be given the same rights as the European Parliament. That in turn implies that the UK Parliament is similar in composition and powers to the EU, whereby it should have the same rights. First, the European Parliament was given the powers under Lisbon as the Commission, post Maastricht, had come under attack for being insufficiently democratic. The status quo ante had been that the Commission negotiated agreements and the European Council agreed them. Post Lisbon, the European Parliament forms a bicameral legislature with the Council of Ministers. This is not analogous to the role of the UK Parliament vis-à-vis the UK Government; I think that should be self-evident. As the EU institutions—

[Baroness Smith of Newnham (LD)]

I am a little confused. I thought that the point of the United Kingdom voting to leave the European Union was to take back control and that Parliament was sovereign and no Parliament could bind its successor. In such circumstances, is it not wholly appropriate for this Parliament to seek to hold the Government to account? Why is there anything peculiar about this?

[Baroness Falkner of Margravine]

I fear that the noble Baroness is a little enthusiastic in jumping in before I have concluded setting out my rationale for why I think that this is not analogous. I will not go into “taking back control” because we are a bicameral Parliament and the European Parliament is not, so it is a different entity entirely.

As the EU institutions practise in an area of trade policy that is not analogous, there is a distinction between straightforward trade agreements and mixed agreements, with differing procedures as the CETA debacle apropos Wallonia demonstrates. I remind noble Lords that CETA remains a provisional agreement; as yet it has not been ratified by all member states. So I would argue that how the Commission works through blockages is still a work in progress. My prediction is that the EU will find it increasingly difficult to pass the kind of comprehensive deals with either the US or other large countries that it seeks if such divergent and multiple checks on its autonomy prevail.

I turn to the noble Baroness’s question about the UK Parliament and the attempt to replicate the European Parliament’s powers here. One singular distinction is that we are bicameral and the European Parliament is a single Parliament, as I have just reminded her. Moreover, we have an elected Chamber, the Commons, which is similar to the European Parliament, and a further appointed Chamber, the Lords. Were we in the Lords to seek to put up objections to a trade deal that had been agreed by the Commons potentially where the detail may not have formed part of that Government’s manifesto, where would we be if the Commons cleared it but the Lords did not? Moreover, if one takes the EU analogy for mixed agreements and replicates it at national level, is one not saying that the devolved nations should also have a veto on the deal?

I am all for involving the devolved powers in the details of free trade agreements as in the end they have to implement them. The current mechanism for consultation should be improved. Would that be against changing our settlement for reserved matters? If that is the case, I will need to look again.

It seems to me that this ongoing quest for analogous powers to those of the European Parliament on the part of some sides of this House is misguided.