Higher Education (Freedom of Speech) Bill

Debate between Baroness Fox of Buckley and Lord Triesman

Consideration of Commons amendments
Tuesday 21st March 2023 Lords Chamber

[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.

Higher Education (Freedom of Speech) Bill

Debate between Baroness Fox of Buckley and Lord Triesman

Committee stage
Monday 14th November 2022 Lords Chamber

[Lord Triesman (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Johnson. Like so many other people in the debate, I strongly agree with the comments made, from the speech by the noble Lord, Lord Grabiner, onwards. I also do not believe that this clause should remain. I do not believe it will do the job it is supposed to, and it will almost inevitably lead to the chilling effect that the noble Lord, Lord Willetts, and others have described.

My noble friend Lord Blunkett asked why the not entirely fictitious person Kathleen could not pursue an action for unfair dismissal because she was compelled into a position that was intolerable. I believe that there was a time when she would have been advised to do that, would probably have done so, and could have counted on the support of her trade union in pursuing that course of action—I can say this directly, as my interest has been declared any number of times. Of course, she found that she could not count on the support of her trade union. I submit to your Lordships that one of the reasons she could not now count on its support is precisely the reason that my noble friend described. If you go back seven, eight, certainly 10 years, the battle that would have taken place in that union to make sure that someone’s employment rights had been sustained without having to resort to any other regulator or court would have been absolute. It would have been the determined position of that union. Some may say that if that would no longer happen, maybe we need something else.

I submit that the “something else” we need is certainly not Clause 4 and this tort. There are those who might say that they are not so concerned about the chilling effect because they do not believe that enough of these things will happen. I say to your Lordships’ Committee that if it wanted to hand-pick a group of its fellow citizens who would argue in the most tortured way about absolutely anything, it should go to one of our universities. There they are: serried ranks of people whose day-by-day enjoyment is to have furious arguments about matters of little consequence. [Interruption.] I have been one for many years.

I will tell the noble Baroness, Lady Smith, that at Cambridge University, after the faculty of economics was redecorated, I was inveigled into taking part in a debate as to the order in which the portraits of its Nobel prize winners should be rehung and whether it should be Marshall or Keynes in the pre-eminent position. I left that debate after eight hours. No one was an inch further down the line of resolving it and, to my knowledge, the portraits have never been hung, because 20 years later no one is any further down the path of resolving it. I hate to say this: the only place where I have seen disputes followed with the same tenacious interest and complete unwillingness to give an inch is in my synagogue, but that is because it largely comprises lawyers. I do not make this point to be frivolous or humorous. The truth is that this is a most vexatious and disputatious group of people. They are employed to have arguments with each other; it reaches into every corner of their lives. If we think that they are unlikely to do so in these circumstances, we mislead ourselves completely.

Some people will be very well backed in pursuing this course of action. I think the noble Lord, Lord Willetts, made the point that some will be at a great disadvantage financially. The student unions that we are talking about are usually run by a small group of young people with no experience whatever of the law. Generally speaking, they are unable to exert any control over all the clubs that form the diaspora of their organisation—the Minister made that point. They will be put in a position that they cannot afford or control, and to which there will be no satisfactory long-term resolution.

All this brings me to say that the points that have been made, including by the noble Lord, Lord Johnson, about having a regulator that can manage these things, and build on knowledge of how to manage them, is a route to a sensible solution. The rest of it—and I apologise if this is thought to be offensive; I do not mean it to be—is completely fanciful, and anybody who has spent more than a few weeks working in a university will know it.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have a huge amount of sympathy with the fears about the chilling effect of Clause 4 and the points that the noble Lord, Lord Willetts, started off making. Basically, I am torn on Clause 4; I do not quite know where to go.

A number of people have discussed the potential of vexatious litigation. I think that is rather cynical. We keep hearing about all these bad-faith players. I am simply worried about litigiousness full stop, even by good-faith players. We know that a dependence on law courts to resolve problems can tangle us up and subsume the matter of fighting for freedom and free speech in legalese, lawyers and so forth, even if done with the best of intentions.

In other words, I do not want us to abandon what we all started off agreeing, which was that this Bill should not compensate for a need for a culture change in relation to arguing for the importance of academic freedom. It should not be seen as a replacement for that. I definitely do not want the law courts to get in the way, because they can kill off any possibility of that culture of the spirit of freedom being drowned out. That is one side of it.

Higher Education (Freedom of Speech) Bill

Debate between Baroness Fox of Buckley and Lord Triesman

Committee stage
Monday 31st October 2022 Grand Committee

[Lord Triesman (Lab)]

My Lords, I wish to introduce Amendment 14. It touches on the kinds of concerns that the noble Lord, Lord Sandhurst, has just raised and it is, in my estimation, a kind of partner clause that I want to explore with your Lordships to the one introduced by the noble and learned Lord, Lord Hope of Craighead, at the very beginning.

One of the arguments I have tried to advocate to the Grand Committee is that, if this is to work at all, it must be felt to be under the ownership of the university and higher education world. For people to address a cultural problem, they need to get to grips with it. It is not about just processes and techniques—it is to do with very fundamental feelings. However many times references to academic freedom are made, if they are not made in a way which aligns with how the academic world and the academic community understand the meaning of those words, it is unlikely to take root and will not have that cultural impact.

That is why I have raised the question, which was also raised earlier by my noble friend Lord Collins, of the UNESCO normative instrument. This was a worldwide UNESCO conference, which adopted a worldwide definition of academic freedom which had been promoted by the academic world, the very people we are trying to address, as a definition to which they could all assent and which they would all defend. I make that point because, if we are to achieve success in this, we certainly want them to adhere to it and defend it.

The work was invited by UNESCO of a body that at that time I had the great honour to chair, which was the Association of Commonwealth Universities, an association of universities literally throughout the Commonwealth. It was drafted—some bits have been cited by my noble friend Lord Collins already—in the United Kingdom and Canada, and went through a very long process to try to make sure that this was the definition of academic freedom which the world of academics would feel was theirs.

If we had gone to UNESCO slightly earlier, the noble Lord, Lord Boswell, would have been the Minister. If it had been slightly later, it would have been the noble Lord, Lord Henley. As it happens, it was just after the general election of 1997 and, as a consequence, it was a Labour Minister who spoke to it. I make that point because there was never a cigarette paper—I know nothing about cigarettes, but the Committee will bear with me—of ideological difference between us about this. There were some differences around the world about it, and one or two nations—only one or two—declined to sign it, much to the annoyance of the rest of us. Saudi Arabia declined on the grounds that it covered women academics as well, and it did not accept that anything should be a right or privilege for women academics—no rights to academic freedom whatever. If we had included a clause restricting it to male academics, Saudi Arabia would probably have signed it as well. I just make the point that this was as close to universal as you could get in academic life where, believe me, getting universal agreement is very close to impossible.

The merit of that is that it provides us with a definition of academic freedom. It may be said that there are other definitions, but this provides us with one that the academic world itself formulated, adopted, approved and, with the exception of people who did not want women to be covered by it, was accepted by everybody. I should probably add that Qatar did not like it either for the same reason, but none the less, all the rest of us did. I commend it to the Government because, if the Bill is to become law—we have expressed our anxieties about whether it is the best way forward, but it may very well do; it is government-backed legislation, after all—I appeal to them to try to ensure it brings along everyone, because short of that, its prospects in practice are very poor.

That is why I provided a small history. As it turns out, it was engendered in the Commonwealth, in institutions with which we are probably all very familiar, against the background of a set of values with which we are all familiar and opposed only by people who, if I may say so without being unnecessarily unkind, do not share some of those values at all. Aside from having the assent of the academic world and being still referred to and related to by it, it establishes in a way we would all want that if people want to get up within the law to make controversial, difficult, unpopular or any other kinds of propositions and speeches in the academic world, it is a global right to do so, signed off by the first signatory to it, the United Kingdom.

[Baroness Fox of Buckley (Non-Afl)]

I shall speak to Amendment 17 from the noble Lord, Lord Strathcarron, to which I have put my name. The amendment strenuously argues that the Bill needs to make it explicit that expressing opinions about any registered HE provider, including opinions on its “curriculum, governance, affiliations”, “teaching” and so on, will be protected by the Bill. Specifically, I want to look at a new challenge to academic freedom in relation to institutional values.

I do not know whether noble Lords saw a remarkable interview over the weekend with a couple of women, Carole Sherwood and Amy Gallagher from the Tavistock clinic. For once, this is not in relation to the gender issue and the Tavistock. One of the women had refused to accept as fact a critical race theory definition of racism as white privilege. Remarkably, the people who were teaching her in front of classes said that she would be denied her psychotherapy qualification because her views were not in line with the Tavistock’s values.

This is becoming a clearer problem that we face, because universities, or their HR and management, are signing up to third-party bodies, which then sign the universities up to values and priorities that might well be at odds with the views of academic staff. Obviously, the infamous example is Stonewall’s diversity champions scheme, but more recently it has come to light that Advance HE’s race equality charter is having the same impact. That charges universities a fee to provide advice and training to audit the university’s anti-racism strategies, themselves formulated around Advance HE’s guidance—you can get bronze and silver certificates and so on along the way. Advance HE encourages universities to highlight their race equality scores in their marketing. Arif Ahmed, lecturer at Cambridge, who has been quoted a lot today, thinks that the charter encourages what he says is virtue signalling competition between universities. I give credit to Dr Jim Butcher from Canterbury Christ Church University in Kent and the campaign group Don’t Divide Us for bringing this to light.

Obviously, we can assume that 99.9% of students and lecturers consider themselves to be anti-racist. The problem is that regardless, this is a very particular version of what constitutes anti-racism. Advance HE’s training argues that the curriculum has been corrupted by western ways of knowing; that our attitudes are shaped by whiteness. It is a version of critical race theory that says that inequality persists even in the context of formal equal rights. That is fair enough, but when it asks that question it gives some at least contentious answers, such as that unequal treatment is a product of white supremacy.

Of course academics and students should be free to hold any of those views—I am not one of those who think that critical race theory should be banned from the university, especially in the context of being a champion of academic freedom—but the problem is that when universities give CRT explicit institutional backing, that means that any academic who doubts the salience of white privilege theories or disagrees with the demand, for example, to decolonise the curriculum not only is arguing against a body of thought but ends up arguing against their employer, which puts them in a very difficult position. We have to be very clear that one should be able to argue against one’s employer or these theories, and we should not be in a situation where somebody is denied a qualification on the basis of the values of the university, which is imposed from the top down and which one is not allowed to query.

I also want to mention some qualms I have about Amendments 15 and 16, which have not been argued for. They attempt to hem in a definition of academic freedom into areas of expertise and professional responsibilities. In particular, Amendment 16 wants to remove

“and controversial or unpopular opinions”

because, as it says in the notes, they have no roots “based on evidence”. I query that, because it is very important that we have a sense of academic freedom here that is much broader than the narrow confines of one’s academic expertise. Actually, the Government did listen on this: I think they had “professional expertise” in and they have taken it out. I do not want to see it being brought back in.