Higher Education (Freedom of Speech) Bill

Lord Hope of Craighead Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

Moved by

[Lord Hope of Craighead]

1: Clause 1, page 1, line 11, at end insert—
“(1A) “Freedom of speech” refers to the Convention right of freedom of expression set out in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as far as it consists of a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form).”Member’s explanatory statement
This amendment seeks to avoid a possible inconsistency between the right to freedom of expression which this Bill seeks to protect and the right to freedom of expression in Article 10 which is the subject of other legislation which may come before the House.

[Lord Hope of Craighead (CB)]

I will pause for a moment to allow noble Lords to leave the Chamber.

My Lords, there are two amendments in this group to which I will speak, and two government amendments in the same group on which I will comment. Before I go further, I express my appreciation to the Ministers, the noble Earl and the noble Baroness, for their very kind co-operation and discussions with me and others in trying to resolve the points I am raising in this group. I appreciated it very much and, for reasons I will explain later, those discussions were extremely fruitful.

My first amendment is in exactly the same terms as an amendment that I tabled in Committee. It simply asks that a provision be included in the Bill to explain what is meant by the expression “freedom of speech” in this context. The problem arises because those of us who are familiar with Article 10 of the European Convention on Human Rights are used to the expression “freedom of expression”, which is what the article talks about. I was concerned that, by some mischance, the Bill was seeking to create a different freedom from that which Article 10 is talking about. By simply putting in the definition in the fairly stark terms that I proposed in my amendment, I thought I could achieve some degree of certainty. I am glad that there was a certain amount of support in Committee for what I proposed, and the noble Lord, Lord Collins, has very kindly added his name to my amendment; I appreciate his support.

My other amendment in this group is Amendment 10, in which I have the support of not only the noble Lord, Lord Collins of Highbury, but the noble Lord, Lord Moylan, with whom I discussed this issue in some detail. It seemed to me and I think to the noble Lord, Lord Moylan, that more needed to be said about the checks and balances which surround the whole concept of freedom of speech or freedom of expression, whichever terminology you choose to use. The convention makes this very clear, because Article 10 sets out the basic right in paragraph 1 and then in paragraph 2 makes a number of qualifications, which make comparatively good sense, to explain that the freedom is not unqualified.

In discussion with the noble Lord, Lord Moylan, I proposed to put forward an amendment which did not come before the Committee to explain what the phrase “within the law” means. I should explain that the way the Bill expresses the idea of freedom of speech is to encompass it as freedom of speech within the law. It seemed to me that the words “within the law” beg the question of what exactly that expression means. A simple way of doing it is to put in a definition, which is what Amendment 10 does. It states:

“‘within the law’ means that the exercise of this freedom is subject to the duty to respect the rights of others and not to do or say anything that is prohibited by any enactment or rule of law.”

I suggest that this simple terminology encompasses what “within the law” means, because the phrase suggests that there is some qualification on the idea of freedom of speech, and this amendment is trying to explain exactly what that qualification is.

Those are my amendments, and I do not think I need to say much more about them. I have discussed them both in some detail with the Minister—the noble Baroness, Lady Barran.

As for the government amendments, I am delighted to see that, as a result of discussions, the Government have brought forward amendments which recognise the place which Article 10 of the convention has in our overall understanding of what the freedoms we are talking about really mean. For that reason, I am happy to see these amendments, and if they are to be moved I shall not press my first amendment. However, I remain of the position that my second amendment, which has been supported by the noble Lord, Lord Moylan, has real force. When we come to the point, I suggest that it requires considerable thought and support because it is essential that we understand what the words “within the law” really mean. Either they are there for a purpose, and if the purpose is there it should be explained, or they have no purpose at all, in which case those words should not be in the Bill. I hope I have explained my position as shortly as I can. With that introduction, I beg to move.

[Lord Moylan (Con)]

My Lords, it is a great privilege to speak after the noble and learned Lord, Lord Hope of Craighead. I have the impression—perhaps I am making it more explicit than he was willing to—that the Government have slightly misconceived the issue: it is not a definition of freedom of speech but rather a definition of the legal framework within which freedom of speech is to be understood. That is, the meaning of the words “within the law” is at issue slightly more than that of the words “freedom of speech”.

--- Later in debate ---

While the very existence of NDAs makes it difficult to understand the full extent of the practice, a 2020 BBC investigation found that nearly one-third of universities had used NDAs to resolve student complaints. I agree with the noble Lord that we cannot allow this practice to continue. It has been encouraging to see that many institutions have signed up to a voluntary pledge rejecting the use of NDAs in such circumstances—a pledge launched by the previous Minister for Higher and Further Education, my right honourable friend Michelle Donelan, together with the campaign group Can’t Buy My Silence. However, it is telling that many institutions have not done so, despite strong encouragement from the Government. So this amendment follows on from the Government’s work in this area over the last year. Just today, the OIA has advised against the use of NDAs. I am pleased to support this amendment on behalf of the Government, and hope very much that your Lordships will also support it.

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to all those who have spoken in this short debate and, in particular, to the Minister for her explanation.

If I may concentrate particularly on government Amendment 7, it achieves my main purpose in my Amendment 1 to avoid the suspicion that, when you talk about freedom of expression in this Bill, you are talking about something quite different from what is referred to in Article 10 of the convention. The reference here makes it clear that we are talking about the same thing.

[Baroness Barran (Con)]

I think I heard the noble and learned Lord say “freedom of expression” in this Bill, but I think he meant to say “freedom of speech”.

[Lord Hope of Craighead (CB)]

Yes—I have got them the wrong way round, as I frequently do. But it does not really matter, because we are talking about the same thing, which is the particular problem that I was concerned with.

I have great respect for the noble Lord, Lord Moylan, with whom I had a very deep and interesting discussion. I must confess that I do not have the same concern as he does about the reference to Article 10(1) only in the definition that the Government are proposing. If we read on beyond that reference, it says

“Article 10(1) of the Convention as it has effect for the purposes of the Human Rights Act”.

The way in which you work out its effect is to read on to paragraph (2). I therefore think that, in short and very subtle terms, it achieves the very point. I do not really agree with the noble Lord’s concern, which I think is met by those particular words “as it has effect”.

For these reasons, and with thanks to the Government for their willingness to come forward as far as they have done, I withdraw Amendment 1.

Amendment 1 withdrawn.