Higher Education (Freedom of Speech) Bill

Baroness Fox of Buckley Excerpts

Consideration of Commons amendments
Tuesday 21st March 2023 Lords Chamber

[Lord Grabiner (CB)]

My Lords, I confess to be rather miffed by the Government’s acceptance of the amendment of the noble Lord, Lord Willetts, because it deprives me of the ability to make the fire and brimstone remarks that I had planned to make. However, I certainly welcome the Government’s reaction to the excellent amendments of the noble Lord, Lord Willetts, and can as a result be quite brief.

On Clause 4, we have really come full circle and are back where we started. As has been pointed out, in our debates Clause 4 was subjected to many serious criticisms by noble Lords across the House, and I will not repeat them. In the face of those criticisms, at Report in this House the Government accepted a clarifying amendment from the noble and learned Lord, Lord Etherton, which incorporated a reference to damages in Clause 4. In a further attempt to meet these criticisms, the Government brought forward their own amendment, as the Minister has pointed out, which gave priority to the regulatory regime and deferred the ability of a private claimant to deploy Clause 4, pending those regulatory procedures being exhausted.

I respectfully urge your Lordships to support the amendments put forward by the noble Lord, Lord Willetts. As to those amendments, the loss point would clarify and emphasise the need for proof of damage as a condition for making a Clause 4 claim. It would deter some frivolous claims, and to that extent would be a valuable amendment.

The priority point in the amendment of the noble Lord, Lord Willetts, is perhaps rather more important. The OfS will have extensive regulatory powers for dealing with an offending student union. Clause 7 would amend the Higher Education and Research Act 2017, whereby the OfS would be obliged to monitor student unions’ performance of their new duties. Importantly, the OfS would also be empowered to impose a financial penalty on a student union and seek an injunction in court. Common sense suggests that the Bill would be significantly improved if priority were given to the regulator and claimants were not able to invoke the private law cause of action until the regulatory function had been performed and completed. This was the Government’s view just a few weeks ago, and I am absolutely delighted that it still is their view—at least in this House.

If I may, I want to briefly draw attention to the email from Ministers which arrived while we were in the Chamber but before this debate began. I will reference the end of the sixth paragraph, which is a point to which the noble Lord adverted when he opened this debate just a few minutes ago. The letter says: “Those affected by the Bill are at the forefront of our minds and it is only right that we reflect that the Government may wish to explore further opportunities to achieve consensus when it returns to the Commons”. The only point I want to make about that is this. The implication of what is said there, and of what the Minister said at the Dispatch Box, is that there may be amendments in the other place that will take away the amendment that I hope we are now going to support, possibly without even a Division. My concern is this: I believe that that would not be a sensible thing for the other place to do.

I would urge one point: if there are felt concerns in the other place that are not satisfied by these amendments, a more appropriate route to be undertaken would be directed towards the regulators, rather than to diminish the quality of the amendment that I hope we are about to make. The regulators are very powerful—they have strong powers in the statute and in this Bill. In my view, the correct party to be concerned with in dealing with the kinds of concerns that trouble everybody in the story, and the proper starting position, is the regulator. That is what the regulator is there for. It would not be right, in my view, to undermine the quality of the amendments that have been put forward in respect of this provision without first facing the possibility that the regulator ought actually, if I may be blunt about it, to pull its finger out.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I was all ready to welcome the restoration of the original Lords amendment to this Bill by the noble Earl, Lord Howe. Previously, I was despondent that we had passed legislation with no teeth, which was potentially a lame duck law, so I was delighted with the reinstated, stronger statutory tort in the Bill that would mean staff and students would have a robust backstop that allowed the ability to sue in the civil courts for breach of their speech rights. In explaining the change, the Minister said he has spoken to many noble Lords. But I am rather taken with the words of the Under-Secretary of State for Children, Claire Coutinho, who noted that she had spoken to many leading academics and that they shared her belief that the tort was necessary to secure cultural change on campus, and that that is why she had introduced the amendment I was prepared to welcome. I can ask only what on earth has changed, other than that the Minister has spoken to noble Lords rather than to leading academics or students.

It is disappointing that we are now being asked to accept a fudge, in the form of the amendment from the noble Lord, Lord Willetts. I fear it will mean that the new, enhanced free speech duties will be viewed as more box-ticking by university managers and student union bureaucrats.

Perhaps I can share my own recent lived experience—to use the fashionable jargon—of being cancelled. I hope at least my remarks will be heard by those in the other, elected place when they consider this debate. Last year, I was delighted to be invited by the University of London’s Royal Holloway debating society to give a talk this February. It was a lovely invitation, from a student called Ollie, who wrote: “We would absolutely love for you to speak to the society about your interesting career, and to talk about the Academy of Ideas and the House of Lords to our keen crop of debaters.” Never one to miss a chance to meet and talk to a keen crop of debaters, I set a date firmly in my diary and I reorganised a number of clashes.

Unbeknown to me—though this has become routine these days for student societies—behind the scenes the debating society had to go through onerous and bureaucratic checks imposed by the student union on whether I would be given permission to speak. Student unions these days have created a veritable cottage industry in safeguarding checks, risk assessments, et cetera. It was a complete pain for the students and time-consuming, and with an undoubted chilling effect on inviting outside speakers. That is what this Bill set out to address, was it not?

Eventually, I was given a clean bill of health by the student union. Apparently, there was no evidence that I was a hatemonger or a threat. However, just a week before I was due to speak, the debating society cancelled. What happened? Once the event was advertised, the same student union bureaucrats claimed that six societies had raised concerns about me coming on to campus, the evidence for which was that I retweeted a clip from a comic on Netflix. Maia Jarvis, the president of the student union, wrote a menacing message to the debating society, stating:

“I hope that you can see that Claire Fox retweets and praises a video of Ricky Gervais being overtly transphobic. I wonder if you have thought about the impact of bringing a person who is an advocate for hate towards trans people and publicly ridicules them. And whether you are comfortable with the fact that that is the message your society is sending out to RHUL trans students.”

--- Later in debate ---

[Lord Triesman (Lab)]

My Lords, I am not sure that I am going to be offensive; I now feel that my presentation is lacking as a result. Let me at once declare an interest. I was the general secretary of the Association of University Teachers in times when the issue of—and necessity for—freedom of speech in universities was regarded as one of their paramount responsibilities.

I readily agree with the noble Lord, Lord Willetts, who said that that is fundamental to almost all of us who have been concerned with higher education. I appreciate what the Minister has said; this has been a very solid development. I also support the amendment the noble Lord, Lord Willetts, introduced, for much the same reasons as the noble Lord, Lord Grabiner.

I feel a sense of disappointment and sadness on behalf of the noble Baroness, Lady Fox. It is obviously never pleasant to be invited somewhere and then told you are not going to speak, but I urge her to get over it. The truth is that when you go into academic climates and start talking to academics, you are going to find—rather like with lawyers—that a large number will agree with you and a large number will disagree. They will tell you that with all the spitefulness, generosity and so on while they do it.

I have come across a lot of academics who want to make sure that the world of universities does not automatically become subsumed in a world in which people pursue litigation against one another, rather than try to resolve things through more sensible routes. It was bound to end in a reasonable compromise, and I think the Minister put that very fairly and very well.

In welcoming these developments, the academics who have bothered to get in touch with me have told me that the kind of change we are contemplating today is the kind they would find easiest to live with. They are more and more—probably in part because of the debates we have had—sympathetic and attentive to the problems that have been created by cancel culture. I used to cancel my own culture when I was a lecturer, largely by giving very erudite lectures on obscure mathematical problems. Very few people enjoyed them. There is only so much multiple regression you can hear about before you conclude that you should take yourself home because no one is going to be that interested, but it was what I was teaching.

That is why I say to the noble Baroness, Lady Fox, that of course some people will be uncharitable and malevolent, but it is something we can get past with a sensible compromise of the kind we have seen—particularly in the light of the reservations the noble Lord, Lord Grabiner, has about it.

[Baroness Fox of Buckley (Non-Afl)]

To clarify, as I stated earlier—this really is important—I do not have a right to a platform and I do not care if people disagree with me. I do not mind if students invite me and then disinvite me. All I care about is if students are bullied into disinviting me. It is for the students that I made the speech, not for myself. Who cares about my feelings? They are of no relevance.

My point is that many academics and students have looked to this Bill and the amendment. The noble Lord, Lord Triesman, has talked to people who want the compromise. I have talked to people who think it is a fudge. Let Parliament decide—fair enough—but I do not think anyone can claim they have spoken to all the academics, and this is the only answer. I think that this is a cop out.

[Earl Howe (Con)]

My Lords, I just say to the noble Baroness, Lady Fox, that strictly speaking there should not be any interventions at this stage of the Bill.