Higher Education (Freedom of Speech) Bill

Debate between Lord Moylan and Lord Willetts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Lord Moylan (Con)]

Now that was a heckle of some value.

To conclude, it might be nice if the Front Bench, which has shown itself capable of endorsing enthusiastically the very laudable Amendment 6, tabled by the Labour Front Bench, could reciprocate by accepting one from its supportive Back-Benchers. If so, I strongly recommend Amendment 21 in my name.

[Lord Willetts (Con)]

My Lords, I rise to speak to Amendment 22 in my name and those of other Members of this House. I begin by thanking Ministers for their engagement with the tricky issues around Clause 4 and, as we have heard, the wide range of views in this House about it.

I make it clear that I completely back the principle of the Bill, which is the need for the right to freedom of speech to be backed with clearer and more enforceable rights than we currently enjoy. However, another point that the Minister has made on several occasions is that we should not overlook the protections that employment law already provides. It looks as though some of the most egregious cases, such as the terrible treatment of Professor Kathleen Stock, are in clear breach of employment law. It is quite a good principle that we should start by properly using the legal protections and rights that already exist.

As we have heard, there is also the framework of criminal law. Nevertheless, there really are problems in our universities, and most of us in this House are not denying it. I have been shouted down at universities, but I have also had a different type of experience, which reminds us of the good features of universities, which we should not forget. I remember a group of protesters with a megaphone denouncing my proposals on student fees. I went up to them to try to persuade them and they could not hear what I was saying, so they lent me their megaphone. I made my point and handed it back to them, and they got on with their megaphone, and we ended up—in the unpromising circumstances of a student demo outside a university—having a proper engagement and disagreement. We should remember that that still happens in our universities up and down the country.

Nevertheless, the framework of employment law and criminal law is not enough and the Government are, in this legislation, bringing forward a very significant further power for the regulator that already exists, the Office for Students, but giving it a clear responsibility in this area. One thing that surprises me about the sceptics—I have had debates with very concerned academics who back the Bill, and we have just heard from my noble friend Lord Moylan—is that they talk about a vague complaints procedure going on interminably, as if this is some kind of feeble option and we really need litigation as the guts of the Bill. In reality, the Office for Students, created in legislation steered through by my noble friend Lord Johnson of Marylebone, is a very powerful body and its powers are being increased in this legislation. It has considerable understanding of and expertise in universities and will gain extra powers in this legislation.

One of the arguments we heard in Committee about the need for litigation was that we need to have financial redress. It is clear that, within the Bill, there are powers for the OfS to require financial redress and to fine universities. These are very substantial provisions. What is very unusual about the Bill, unlike many other circumstances and many other policy debates I have been involved in over the years, is that the Government are not just empowering a regulator, they are, in parallel, adding a new proposal for a right of tort and civil litigation alongside. That is a very odd way of trying to tackle the problem. The Government should have confidence in the powers of their own regulator, reinforced by the proper enforcement of rights under employment law.

The Minister, whose engagement in this I respect and appreciate, said that we should not worry because, with the amendments he is bringing forward, civil litigation would be a backstop. I do not understand what a backstop is in these circumstances. We all know that a student union—and I worry about student unions at least as much as about university administrations—if one of these controversies flares up, will receive a lawyer’s letter in the first 24 hours. The lawyers will not say, “Let’s wait and see how the OfS proceeds, because we are the backstop”; the legal letters will arrive. When I think, therefore, about the real test of whether there should be this provision for tort, the real test that, surely, all of us in this House can share is: will the net effect of this provision be to increase and enhance freedom of speech in our universities, or will the effect of this power of tort be a further chilling, a further reduction in freedom of speech in our universities?

I think of people who try to organise events painstakingly to promote freedom of speech in their university. They try to find a neutral chair who will chair two highly controversial and disputing views. When one person turns up, they try to arrange for there to be an alternative. They try to find the right place for these meetings and sometimes they are already traduced in the media as if they are somehow part of the problem, when they are actually trying, very decently, to be part of the solution. Will the prospect of a legal challenge to what they are doing give them the confidence to carry on organising those events and promoting freedom of speech in our universities? I fear it will have the opposite effect. I think of a 19 year-old who sets up a student society in his or her university, thinking, “Will I find myself facing a legal letter if I get bogged down in trying to arrange an event?”

We already face a very worrying trend of a decline in the number of external speakers going to universities because people think it is just more trouble, too risky and too dangerous. The risk with these provisions is that they make that trend worse: more people will do exactly what we all fear. They shut up, they keep their heads down, they do not invite controversial speakers, they do not invite any speakers at all; they lie low and stay out of trouble. That would be terrible for freedom of speech in our universities and I fear that is the risk if people expect to face legal challenge for events they organise.