Higher Education (Freedom of Speech) Bill

Lord Mann Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

Moved by

[Lord Mann]

29: Clause 1, page 3, line 13, at end insert—
“(ca) an explanation of how to guarantee freedom of speech while fulfilling the provider’s duty of care for all students, academics and staff,”

[Lord Mann (Non-Afl)]

My Lords, in moving Amendment 29 I shall speak to the three amendments in my name; they are identical in wording and impact but are in different parts of the Bill. I do so having personally met, on this related issue, the majority of university vice-chancellors across the United Kingdom over the past two years in advance of the Government’s decision, made by the then Education Secretary, to write to universities asking them to adopt the internationally recognised definition of anti-Semitism and build it into their workings. I have been delivering on that successfully across the vast majority of universities across the UK; that work continues.

I want to highlight some examples of why a duty of care is an essential element of strengthening free speech, not as a balance but as an addition. The principle behind it is very straightforward. I referenced the international definition of anti-Semitism because the argument falsely put by a number of people against it was that it aimed to restrict academic freedom and what people said, particularly in relation to Israel. That is factually and practically untrue. There are no examples of where that has happened. It is neither designed nor written to do so. The reason I have needed to meet so many vice-chancellors, and others at the top of universities, is to ensure that they understand what it means and what it does not mean so that they can apply it appropriately, and so strengthen freedom of speech.

If I may, I will give a couple of examples of where the duty of care comes into its own. A famous filmmaker and political activist, Mr Kenneth Loach, was invited to speak at his old college, St Peter’s College, Oxford. A number of the Jewish students in the college were unhappy at Mr Loach’s previous commentary in relation to the Jewish community. That was their perception and, using traditional student language, they suggested that he was not welcome in their college.

There was a complication, as this was during Covid. What normally would have happened is that Mr Loach would have appeared, and there would have been a noisy protest to signify to him that he was not welcome by a number of the students because of what he had said, and he then would have spoken and life would have moved on. Here, because it was online, the university failed to find a way for those students to register the protest that would have happened in real life. This illustrates brilliantly that one person in that situation had free speech and others objected, but what they required, and are entitled to, was the ability to have their speech; that might have been through a protest—very traditional in student environments—or a countermeeting, but they have an equal entitlement to free speech.

Take that instance as an example. What might a university do now? If that meeting had been timetabled for a Friday night, it would have inhibited the ability of any religiously observant Jewish student to participate in a protest or countermeeting, and so their freedom of speech would have been inhibited by the timing. If the meeting had been located in St Peter’s, that would have been neutral territory, but if it was located, say, next to the Jewish chaplaincy, there would have been an increased aggravation on behalf of those Jewish students, and the protest would perhaps have been wider and stronger. That might suggest that Mr Loach’s freedom of speech, which was not in itself being challenged, would be an impingement if the location of the meeting had been somewhere that was seen to be hostile to a section of the community—in this case, the Jewish students. The publicity for the meeting was “Ken Loach speaks on whatever”, but if it had included swastikas on the head of the Prime Minister of Israel or on the Israeli flag, there would have been an increased incentive for people to shout loudly in protest and demand that he did not speak.

All of that would fall into the category of a sensible duty of care to those students, so that their ability to have their freedom is equal to that of someone who they regard as a controversial speaker—not to restrict the content of what Mr Loach would say, to break up the meeting or to prohibit his right to speak or someone’s ability to invite him. That is an example from before this Bill came forward, but one whereby, if the principles of the Bill are got right, then two sides in an argument can have equal freedom of speech. They may not all be 100% happy but everyone can have their say.

I will give another, more vivid example. I will not give too much detail but it is a real example. Let us say that a convicted terrorist is allowed into the country. I have the ability to go to the Home Secretary—and I have occasionally done so—to say that this person should not be allowed in because they are a threat. If they are allowed into the country, by definition—even if they have served a prison sentence as a convicted terrorist—they are able to speak, including at one of our universities. What happens if a student at that university is the cousin of one of the people murdered by the group of which the individual who is about to speak was a member when the terrorist outrage took place? So we have a student, in this case a Jewish student, whose cousin was murdered, and a member of the group convicted and imprisoned for that offence—with no argument or ambiguity about that—is speaking. Here, the Jewish student demanded that this convicted terrorist not be allowed to speak.

I have argued, previous to this Bill and now, that freedom of speech is absolute; the person is allowed to speak. But there is clearly a duty of care on a university when you have at least one student extremely distraught, for rational reasons, about somebody who was involved in the murder of their cousin speaking in their university. That is not to say that we should ban, stop or restrict, but we must make sure that that student also feels empowered in the situation—perhaps they want to be part of a protest or have a countermeeting. They may need other welfare support in that context. That strengthens freedom of speech; it does not contradict or balance it. This is not a balancing act—it is about everyone having the right to freedom of speech.

I will give a milder example. In the last week I met the vice-chancellor of a university, one of whose very good policies—I will not embarrass or praise them, however you judge it, by naming it—is that all of its academics have been told that it is unacceptable to use the term “Tory scum” in their lectures. It is being directed at government Ministers primarily, whom they clearly oppose on various grounds. One can envisage what might be going on there. The reason this has been done by that vice-chancellor, with due regard to great and wonderful government Ministers, is not the sensitivity of government Ministers but the result of going through the process of thinking through the duty of care. If you were an 18 year-old Conservative-supporting student in that lecture, perhaps in your first term at university, you might be listening to lecturers calling one of your favourite Ministers “Tory scum”.

That is a milder example, but it shows rather good practice. If one wants to put an argument against the Government, turning to abuse to do so is not very effective. It becomes a weaker argument. The student in that position perhaps thinks—I am not making a political point—that there are not masses of Conservative students in solidarity with each other, certainly not in their first year, in certain courses at certain universities. The likelihood is one Conservative-supporting individual among a cohort who they might think are not—who might be delighted at such language and want stronger. But their rights to be empowered are equal. A simple duty of care there does not restrict free speech but improves it.

I will give a final example. A lecturer makes a controversial speech and then, as is very common, there is an immediate external pile-on. The same thing happened to the Jewish students I mentioned in regard to Mr Kenneth Loach. They protested; they were not trying to block him but some of the language used—“We don’t want him in our university”—implied that they were. That was not what they were trying to do, but they got some horrendous anti-Semitic abuse, almost exclusively from people outside the university, because they had dared to challenge Mr Loach.

In this case, a lecturer made a speech which did not appear that controversial when I read it but was deemed so by some. There was a huge email pile-on against the university, attacking that lecturer. The university did not, shall we say, handle it very well. Again, there is a duty of care to the individual. It is one thing to have the right in law to freedom of speech, but the consequences of the speech can be that some people are greatly distressed by the content, or that the speaker is then targeted and needs some support.

Some people—politicians in particular—can thrive in the adversity of debate, but others are more normal human beings. If they are getting abused by thousands of people, or thousands of people are demanding their sacking because they have said something, their reaction will be different. This is not a case in the public domain but one that I am very familiar with; I am happy to give the Minister private detail on it if he wishes. I could go on to give lots of other examples but this is sufficient to make my point.

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[Baroness Falkner of Margravine (CB)]

My Lords, first, I want to refer to the remarks of the Minister to clarify something; I have not had the opportunity to look at Hansard immediately since he spoke on the previous group of amendments. I think I said on Monday that I was speaking in a personal capacity. The Minister has put on the record that I chair the Equality and Human Rights Commission. However, I was not speaking as the chair of the Equality and Human Rights Commission, but in a personal capacity.

The reason this is important is because I have taken advice from the Registrar of Lords’ Interests. As the commission’s powers in terms of protected characteristics are so wide, I would be able to say almost nothing were I to adhere to his advice that I should not speak on anything where the EHRC has a policy. For the rest of this debate, to put that correction on the record, I would like to make it clear that I will speak only as chair of the Equality and Human Rights Commission when I specifically say so in my opening remarks, and I will always tell the Committee that I am speaking in a personal capacity when I so do.

I would like to speak in a personal capacity to warn the Grand Committee to be extremely careful about the amendment from the noble Lord, Lord Mann, which seems on the face of it to be perfectly reasonable. We do not need to be concerned about his perfectly valid and good intentions, but his peroration has made one extremely concerned about what he would expect to happen through that amendment. The noble Lord referred to the fact that the opponents of a speaker have an equal right to protest or drown out what is being said. He says that their right to be empowered is equal.

[Lord Mann (Non-Afl)]

I am absolutely categorical that the drowning out and breaking up of a meeting would not be acceptable in a democracy, but the right to have a counter-speech or a protest is a fundamental part of democracy.

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[Earl Howe (Con)]

My Lords, as we have heard, this group brings together a series of amendments that seek to clarify in the Bill how its duties will interact with other duties and responsibilities.

Amendments 29 and 44 in the name of the noble Lord, Lord Mann, seek to ensure that providers and student unions balance their duty to take steps to secure free speech with their duty of care to students, staff and members. Amendment 32 would add this consideration to the duty to promote in Section A3.

I am grateful to the noble Lord for raising this important point and listened with care to the examples he gave. He is quite right that providers have a duty of care to their students under common law, as well as obligations to their staff under employment law. Student unions also have responsibilities to their staff under employment law. It is of the utmost importance that they can fulfil these obligations, providing an environment in which students, academic staff and members can thrive and taking reasonable steps to promote their health, safety and welfare.

As I mentioned, the noble Lord cited a number of examples to illustrate his arguments around the duty of care, one of which was a speaking invitation issued to a convicted terrorist. Inviting a convicted terrorist would likely require consideration under the Prevent duty in addition to the wider points he made on duty of care. I will cover the Prevent duty in more detail when I cover Amendment 69, if he will allow.

[Lord Mann (Non-Afl)]

I thank the Minister but, to clarify, the case I cited was not stopped by Prevent. Prevent was in place. This was an actual example, not a theoretical one, but I do not want to name the college or identify the student in any way. It was perfectly lawful under Prevent; Prevent did not stop it and was not party to it. As an actual example, I think it is a good illustration.

[Earl Howe (Con)]

I was making the point that the case he used to illustrate the issue would have been likely to engage Prevent even if the Prevent considerations had taken second place to the decision to promote freedom of speech. I do not disagree with the noble Lord in the way he suggests.

This leads to the general point that, to assist it to discharge its duty of care, a provider needs to ensure that it has in place effective and robust systems, policies and procedures for supporting and managing students, and that training and awareness-raising is provided for staff. Such a duty of care does not conflict with the duties in this Bill. The requirement to take reasonably practicable steps allows providers to balance that duty with other duties and responsibilities to students, staff and members.

Amendment 35 from my noble friend Lord Moylan would add a new provision to the public sector equality duty in the Equality Act 2010, whereby public authorities would need to have particular regard to their free speech duties. The amendment raises an important point. Providers are subject to different duties, and it is vital that they balance them appropriately. However, the Government are clear that the duties in the Bill will not override existing duties under the Equality Act, nor will those existing duties override the duties in the Bill. The noble Baroness, Lady Fox, cited the briefing from SOAS, which I have read. The briefing is absolutely incorrect to suggest otherwise. We need to remember that the public sector equality duty is a “due regard” duty.

There have been occasions when the Equality Act has been misinterpreted by providers—for example, as to whether the conduct is harassment—but the Office for Students will publish guidance to help bodies under this Act understand their duties and apply them. Providers will be required to take reasonably practicable steps to secure freedom of speech. In deciding what is reasonably practicable, they must have particular regard to the importance of freedom of speech. This does not mean that freedom of speech must always outweigh other considerations but indicates that it is a very important factor and will need to be weighed against other factors, including the public sector equality duty.

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In conclusion, I hope I have reassured the Committee that the duties in the Bill have been carefully drafted to ensure that providers, their constituent institutions and student unions pay particular regard to the importance of free speech and academic freedom while retaining the flexibility, by virtue of the wording about steps being “reasonably practicable”, to balance the duty with their other obligations and responsibilities to students, staff and members.

[Lord Mann (Non-Afl)]

I beg leave to withdraw the amendment.

Amendment 29 withdrawn.