Higher Education (Freedom of Speech) Bill

Baroness Shafik Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Lord Blunkett (Lab)]

My Lords, encores are rarely worth the value of the extra time, but the noble Lords, Lord Grabiner and Lord Willetts, have shown that it can be done. I will be very brief, because they have said so much.

I draw attention to an interesting contribution from Professor Jo Phoenix, who was interviewed recently on Radio 4. She supported this clause on tort, on the grounds that the University of Essex had treated her appallingly—it clearly had; this was acknowledged—but she had not been able to obtain loss. She was not employed by the University of Essex, so the loss was some theoretical appreciation of whether she would be invited somewhere else because of what had happened at Essex.

I commend the noble Earl, Lord Howe, for attempting to meet the debate in Committee, but I think we have opened another can of worms. You go through the Office for Students and the adjudicator and you have the facility of judicial review and, as the noble Lord, Lord Willetts, said, employment law—which I used to teach—which could involve constructive dismissal if you are employed. If you are not employed there but have been treated extremely badly—the right of free speech has been denied you and that has been acknowledged —you might believe that the acknowledgement itself may persuade others not to invite you and you would use the law under this tort to go to court to get redress.

What is the redress? Who will make a judgment on the financial value of what you might have done had you been invited to speak elsewhere, when you do not know whether you have not been or would have been invited? It is a bit like Donald Rumsfeld’s known unknowns. If you go to court with known unknowns, you will be in a disaster area. The only people who will benefit—I say this with some humility to my good friend, the noble Lord, Lord Grabiner—are the lawyers.

The simple way around this is to do two things: approve the rest of this Bill and encourage civil society to be civil and people to stand up for each other, rather than always running to the courts, to deal with this small minority of intolerant, anti-democratic bigots—they are bigots, in terms of not being able to debate properly the rights of women. That is really what we are talking about in lots of these cases. We should not have a merry-go-round of trying to compensate somebody for something which you could never know and, if you did, probably would not have resulted in a loss of income in the first place. Let us get rid of Clause 4 and get back to common sense.

[Baroness Shafik (CB)]

My Lords, I speak in support of Amendment 22, to which I have attached my name. I declare my interest as director of the London School of Economics and Political Science. It is a great pleasure to follow the noble Lord, Lord Willetts, whose remarks I very much agree with. I also thank the noble Baroness, Lady Barran, and the noble Earl, Lord Howe, for the constructive way in which they have engaged with all of us throughout the passage of this Bill.

It was made clear in Committee that Clause 4, as drafted, was not fit for purpose and that statutory tort would provide an avenue for vexatious, costly and damaging cases to be brought against universities by troublemakers far more concerned with self-promotion than free speech. The clause would have the perverse effect of limiting free debate and exchange of ideas on our campuses by creating exactly the kind of chilling effect that it aims to prevent. Student unions in particular would be frightened of inviting anyone at all, given this risk of lawsuits.

LSE hosts literally hundreds of events every year, which are all open to the public, and as its director, I have chaired hundreds of them. We work very hard to foster an environment where free speech and critical thinking are encouraged. I feel strongly that the solutions to the chilling effect, which I acknowledge exists, lie in education, dialogue and codes of practice, not the courts. Peers in the US, a far more litigious country than ours, are now petrified of inviting any speakers at all for fear of the consequences they may face. I fear that this legislation could take us to a similar position.

I was grateful that Ministers acknowledged that changes were needed and that significant revisions have been tabled on Report. Despite those positive moves, which are very welcome, I am still convinced that Clause 4 remains both unnecessary and potentially very harmful. I believe analysis and redress should be overseen by the regulator, as the noble Lord, Lord Willetts, has said. The existence of the tort system would call into question the working and judgment of that regulator, as well as universities’ own procedures. It would open up our institutions to potentially long, drawn-out and unnecessary complaints brought by individuals with axes to grind, time on their hands and, potentially, the financial backing of those with an agenda. I do not believe that having to go through existing complaints procedures would deter those kinds of individuals.

The potential costs of time, effort and money in highly constrained circumstances are unduly high. Of course, we would have to ask about loss, as the noble Lord, Lord Grabiner, very eloquently noted. Who has sustained this loss? It is still very indeterminate and the legislation as drafted does not require that loss to be material. Is it monetary, reputational or temporal? Is there a minimum threshold for the loss? Could it be the price of hurt feelings or the unquantifiable effects of media attention? All those things are highly intangible. There is still far too much uncertainty and confusion, and too much potential for this tort to be misused or have the perverse effect of stifling freedom of speech, which would be contrary to the other, more meritorious, objectives of this legislation. I concur with the proposal to remove the tort, as I believe it will be counterproductive.

[Lord Moore of Etchingham (Non-Afl)]

My Lords, I cannot call the noble Lord, Lord Willetts, my noble friend because I am non-affiliated, but outside this House, I call him my friend. He has been my friend for 45 years. I can testify that his well-known nickname is correct and that he does have double the cerebral capacity of the rest of us, so we should all listen very carefully to anything he has to say.

However, although he made many good points, I do disagree with his conclusion. We must not lose sight of the wider context, and I think there is a slight risk that we might do so in some areas of this House. There is a danger of us suffering from what economists call producer capture. By that, I mean that there are a great many people here who are very close to the top of universities. It is not very surprising that they all tend to think that universities are running themselves quite well and that it is all basically all right. However, I think there needs to be a little more power for the voice of the ordinary student and the ordinary, not-very-important academic who is having a rough time. I was very grateful for and impressed by some of the points made about that by the noble Lords, Lord Macdonald of River Glaven and Lord Hunt of Kings Heath, in particular, who really tried to bring home the reality of these difficulties.

Going back to why the Bill exists at all, it is to do with the fact that the traditional freedom of speech ethos in universities came under threat. In the past, threats to academic life came from without but now they are coming from within. That is the essence of the problem and why the Bill got going. Even though there have been some changes and alterations of behaviour—for example, the establishment in Cambridge University was defeated in its attempt to suppress free speech and real free speech won—there are still examples.

In Cambridge quite recently, the master of Gonville and Caius College—I think she did not fully understand that the word “master” in the Cambridge or Oxford circumstances is a misnomer and you cannot issue orders at all; it is a very unmasterly position—said that the presence of Helen Joyce speaking in that college would be hateful and that, on those grounds, her talk should not take place. I believe that Helen Joyce would not have been allowed to speak had it not been for the fact that Professor Arif Ahmed, the great leader of free speech, was a don in that college and stood up for Helen Joyce, so the meeting finally took place.

There is a problem, and it has not been sufficiently acknowledged by everybody here. Therefore, it seems that there has to be in the Bill—as there was and to some extent still is—some form of deterrent. There has to be something that goes beyond the universities themselves to make them feel a little nervous about where they have got to. Since universities are currently failing in many cases to uphold the duty of free speech, we cannot just depend on people such as the expert regulators, to which the noble Lord, Lord Grabiner, referred.

The idea of a new tort is to change that. The law of tort offers remedy to private citizens when private duties are breached. This is as opposed to the upholding of more general aspirations, as might be achieved, for example, by judicial review. This difference has not been sufficiently acknowledged in some of the things that have been said. If an academic could bring timely action under a statutory tort, that would concentrate the mind of the university at which he or she worked. That university would face a real deterrent to impeding his or her free speech, because a county court could find against it, with legal, financial and reputational consequences. As the noble Baroness, Lady Shafik, said, I do not quite understand how the prospect of some suit about free speech would frighten people who were inviting people in the cause of free speech. If, however, free speech complaints must always be brought first to an internal complaints procedure, the university will be tempted to mark its own homework favourably or to spin out the process. Early complainants will then retire exhausted and later, prospective ones will not even bother to start.

I add that the Office for Students, on which much reliance is being placed, is not necessarily the best arbiter. As its name suggests, it is for students. The people at universities for whom the free speech stakes are highest are not undergraduates but career academics. The statutory tort, pursuant to which injunctive power could be exercised, would give them the strong protection they increasingly need. I therefore oppose the amendment in the name of my real friend, the noble Lord, Lord Willetts, and support the amendments in the name of the noble Lord, Lord Moylan.

Higher Education (Freedom of Speech) Bill

Baroness Shafik Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Baroness Shafik (CB)]

It is a pleasure to follow the noble Baroness, Lady Chakrabarti, who brings a great deal of expertise and insight to this important debate, as indeed have all Members who have contributed. I thank the Minister, first, for the comprehensive introduction to the debate and, secondly, for the constructive and kind way in which he has engaged with me in advance. I have also discussed assurances with the Secretary of State. I draw noble Lords’ attention to my registered interests, specifically my role as director of the London School of Economics and Political Science, which of course will be directly affected by this legislation.

It is absolutely right that the Government want to protect and promote freedom of speech. Indeed, freedom of speech and academic inquiry is central to everything that universities do. That necessitates the full freedom to pursue lines of academic inquiry, even when they may end up in uncomfortable places. At the LSE, our very international community welcomes speakers from across the political, national and ideological spectrum to its campus, as the noble Lord, Lord Wallace, noted. They set out their stalls, respond to challenge and, in the best traditions of university life, educate our students on different points of view and, more importantly, on how to engage with those different points of view with intelligence and respect.

As the noble Baronesses, Lady Thornton, Lady Royall and Lady Garden, noted, the House Library references a report and a survey of 10,000 cases of external speakers, only six of which were cancelled. That is 0.06% of all events surveyed. I am proud to say that, as far as I know, at LSE we have never no-platformed a speaker. That is because we actively manage and promote freedom of speech collectively. It is an interesting question whether you need 23 pages of legislation for a 0.06% problem, particularly given that the higher education sector faces so many other challenges, but here we are.

I turn to the content of the Bill, which proposes a new legal “Duty to promote” under Clauses 1 and 3. This would change the legal balance between the protection of freedom of expression and other statutory duties placed on universities over the years, such as the public sector equality duty and the Prevent duty. Those duties are in potential conflict with this legislation, as noted by the noble Baronesses, Lady Deech and Lady Chakrabarti. I would very much welcome insight from the Minister into how all these duties will coexist successfully and what guidance will be available to universities to avoid being caught in the middle of conflicting legal obligations.

Clause 4 would create an avenue for civil proceedings for anyone who believes that their freedom of speech has been curtailed. Drawn too broadly, this new tort would pave the way for vexatious, time-wasting and expensive litigation, as many Peers have noted. The Bill is very unclear as to the exact circumstances that would allow this tort to be pursued. For example, will there be a threshold of harm? I believe that there should be, similar to the threshold in the Defamation Act the Government passed in 2013. Will the Government confirm that this new tort could be pursued only if the existing university complaints procedures had been exhausted? Again, I believe that this should be written into the legislation, analogous to the protections in the new OfS complaints scheme set out in Clause 8. Better yet, choose just one route for complaints, as the noble Lord, Lord Willetts, suggested. I suggest that the regulatory route would be much simpler than the litigious one.

Clause 10 legislates for the new director for freedom of speech and academic freedom in the Office for Students, which has been much discussed. Of course, I understand that if we pass this legislation the Government will want expertise in the Office for Students to keep an eye on it, but we must be clear: the director must be an expert. I know that the recruitment process for this director has started. It would be reassuring to know that the selection panel is well staffed by those with expertise in the legal issues around free speech and the challenges facing universities, and will choose someone with expertise in both areas.

I turn finally to Clause 9, which sets out the requirement for the reporting of foreign donations to and contracts with UK universities. It is understandable that Ministers want to keep an eye on relationships with foreign powers and organisations, especially where there are issues of national security, but this must be proportional and risk-based. I therefore strongly welcome the Government’s commitment to ensure that there are sensible exemptions to the new reporting regimes, especially where national security risks are low. Although these exemptions will be set out in subsequent guidance, it would be helpful to have on the record the Government’s thinking thus far before the Bill passes. The Government have suggested a reporting threshold of £75,000 for foreign funding, though the equivalent in the United States is $250,000. A sensible equivalent would reduce undue bureaucracy and expensive costs for what are small-scale arrangements, as mentioned by the noble Lord, Lord Johnson. I am also keen to understand what additional resource the Office for Students will have to monitor what will be a significant increase in its workload.

In conclusion, I thank the Government for the constructive way in which they have approached this legislation so far. As the Bill progresses, I hope we can achieve some sensible amendments that will enable the Government’s ambitions to protect free speech while supporting a universities sector that continues to be the envy of the world.