Higher Education (Freedom of Speech) Bill

Baroness Chakrabarti Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I declare interests as a former chancellor of the Universities of Oxford Brookes and Essex, as, variously, a visiting and honorary fellow and professor of a number of universities and constituent colleges, as a visiting professor at the LSE and as, over this last academic year, someone who has benefited enormously from working with a PhD student at King’s College London.

I have always campaigned for freedom of speech and for all other fundamental rights and freedoms, from which it cannot be plucked or separated. I have done this, or tried to do this, on behalf of those who were for the moment vulnerable, demonised and endangered, including those with whom I profoundly disagreed and who have even denigrated the very rights that should protect them.

Today feels like “a bright cold day in April, with the clocks striking thirteen”. This Bill is wrong-headed in principle and clumsy in execution. Freedom of speech is not advanced by particularism, complex or onerous regulation or government tsars but when we each practise what we preach, lead by example and understand that it is the ultimate two-way street in a human rights framework built upon equal treatment, the very antithesis of which is partisan protection and hypocrisy. In short, my speech cannot be free while yours is always treated as a little more expensive or otherwise put practically beyond reach.

This Bill comes amid a wave of anti-rights legislation and rhetoric. In particular, on-street dissent has been criminalised today by the Police, Crime, Sentencing and Courts Act and will be eroded still further if the measures copied and pasted from anti-terror law in the Public Order Bill are allowed to pass. Cabinet Ministers and other government sources are on the record for their “war on woke” which, by definition, prioritises opinions that they find agreeable over those that they find uncomfortable in a kingdom that they do not seek to unite.

In a manner reminiscent of Mr Trump across the water, pro-Brexit protesters in 2019 and statue defenders in 2020 were actively encouraged by some of the same Ministers who now seek to impugn climate and race-equality activists and lawfully striking and picketing trade unionists. So higher education providers and student unions have good prior reason to give a critical, sceptical reading to this Bill.

To add insult to injury, we are speaking less than a week after the Government’s introduction of what Amnesty International called the “Rights Removal Bill” and at least one noble Lord opposite called the “Bill of Wrongs”. This proposes to repeal the Human Rights Act without a single enhancement of rights protection but drastic diminution instead. This is forensically important, as the Department for Education relies heavily upon the Human Rights Act in its various explanations and justifications for this opaque Bill.

In particular, while the rights removal Bill has been sold as enhancing free speech, it reduces the positive obligations on public authorities to guarantee rights within their realms and attempts to limit Article 10, on free speech protection, to areas outside the criminal law. That licenses ever-broader anti-speech offences and police powers in the future. So far from being universalist, the Government’s approach to rights and freedoms is not even constitutional or one-nation. Instead, it is contradictory and partisan.

As to the detailed convolutions of this Bill, your Lordships’ House will want to allow significant time for their scrutiny in Committee. In the meantime, will the Government prepare new memoranda explaining how the provisions will interact not just with the Human Rights Act, which they plan to scrap, but with its so-called replacement, alongside the Equality Act and Prevent programme, which has been such a complication of, if not threat to, free speech on campus, and all the other pre-existing regulatory duties on higher education bodies?

How can it be a protection of academic freedom to give more and more power over independent institutions of scholarship to the Government’s Office for Students and the new director for freedom of speech? Who is going to fund litigation for claims and defences of a breach of the new statutory duty, at a time when civil legal aid is virtually non-existent? How will institutions be protected from vexatious litigation by wealthier interest groups in particular? As to the new provisions relating to foreign funding, who should decide which funding is or is not acceptable in our world-class academy? How will our institutions of higher learning be protected from the weaponising of provisions in this Bill as proxies for human rights and other disputes internationally? What are the Government doing about what many academics feel to be the real threats to their freedom—precarious employment, lack of representation on governance structures, directions as to which research to undertake and political interference, including the attack on the arts?

You cannot cancel cancel culture, any more than you can realistically no-platform ideas you detest in the age of the internet. However, you can demonise the courts, the arts, the academy and even the young in a culture war of divide and rule. Some speech is free, it would seem, and some is rather more expensive: that is the real message behind this Orwellian Bill.

Higher Education (Freedom of Speech) Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

[Lord Macdonald of River Glaven (CB)]

My Lords, I declare an interest as the former warden of Wadham College, Oxford, and as an honorary fellow there and at St Edmund Hall, Oxford.

I have a great deal of sympathy with the remarks made by the noble Lord, Lord Hunt, in which he identified a problem but suggested that this Bill was not the right way to confront it. As the noble Baroness, Lady Fox, rightly said, the problem is a very deep-seated cultural issue that I doubt will be dealt with significantly by this legislation, should it pass. It is my experience of running a college that has led me to feel rather queasy about some of the slightly nightmarish, as I see them, schemes and bureaucracies proposed by the Bill.

Of course, there is an issue. The case of Kathleen Stock is the most egregious example. In my view, she was disgracefully mistreated by her university and professional colleagues, not to speak of the students at the University of Sussex, some of whom seemed to be clearly breaking criminal law with the demonstrations they mounted against that highly respected academic. Young men—they seemed to be men—wearing balaclavas, holding flares and chanting threats against her seemed to me clearly to represent a breach of the criminal law, and it is a great shame that the university did not see it that way.

However, it is not just Kathleen Stock. The events in a Cambridge college over the past few days have also been deeply disturbing. The idea that a writer such as Helen Joyce, who I would regard as entirely in the mainstream, should be regarded by the most senior figures in that college as unacceptable as a speaker seems deeply depressing and redolent of a cultural problem, not just in that college.

An amendment put forward by the noble Lord, Lord Hunt, therefore attracted my interest. It is the one that relates to the question of a hecklers’ veto. The way I perceive it, the issue in universities is not so much that events are being stopped by demonstrators standing outside chanting and making a nuisance of themselves; it is the more or less cowardly response of university and college authorities who decline to host events when they fear or are warned that that sort of response will eventuate. This is a true hecklers’ veto. I have some sympathy with that amendment, although I share again the hesitation expressed by the noble Baroness, Lady Fox, that the Bill should contain a clause which is anti-free speech, if you like, rather than it being consistently pro-free speech.

I have great respect for the noble Lord, Lord Moylan, but I strongly disagree that Article 10 is somehow deficient for our needs in this area. On the country, it provides generous and comprehensive jurisprudence on the right to free speech; it is suitably qualified and well understood by our courts, public bodies and public institutions. It is certainly well understood in the University of Oxford, the university I have been most associated with. I think Article 10 is entirely fit for purpose and I strongly support the amendment from the noble and learned Lord, Lord Hope, to reference it in this legislation. It would provide consistency and legal certainty, so I hope the amendment will not in the end be controversial with the Government.

[Baroness Chakrabarti (Lab)]

My Lords, I did speak at Second Reading, so I really am not going to make a Second Reading speech; I am not going to say I am not and then do it. Although I have been clear that I think the Bill is a mistake that will lead to a great deal of time-consuming, heartbreaking and expensive litigation for our universities, which should instead be engaging in what they should be engaging in, including creating the culture that we all want, I say in some sort of spirit of bipartisanship to the noble Lords and Ministers opposite that the amendment from the noble and learned Lord, Lord Hope, is a learned and friendly gesture indeed.

All these amendments and everything that I have heard so far merely emphasise the dangerous complexity of legislating so clearly in the realm of a convention right without referring to it at all, save the statement that the Minister is required to make on the cover of the Bill about compatibility with Article 10. It is clearly the Government’s intention that this Bill, wrong-headed though I think it is, should comply with Article 10, so to try to redefine Article 10 in a slightly different way in the body of the Bill is a mistake that adds to the complexity and the danger for different regulatory bodies, be it the Equality and Human Rights Commission or the Office for Students. The noble and learned Lord has helped by making it clear that freedom of speech within the law in the United Kingdom means compliance with Article 10 of the convention. Frankly, that was pretty much the case before incorporation by way of the Human Rights Act.

I take the point from the noble Lord, Lord Moylan, that, with the resurrection of the former Justice Secretary and Deputy Prime Minister, he wants to future-proof and hopes for the scrapping of the Human Rights Act, but even the rather botched and misnamed Bill of Rights Bill purports to comply with Article 10. It is jumping the gun to try to define freedom of speech within this sector differently from the way it is defined in every other aspect of UK law and life.

I also say to the noble Lord, whose libertarian instincts on free speech I share, that, as a matter of jurisprudence and law, he is mistaken in a number of ways. It is all very well banging the drum for the common law, but there literally was no actionable right to free speech in this country until Article 10 was incorporated by the Human Rights Act. There could be under a future Bill of Rights, but there literally is not this magic thing in the common law that will protect people’s free expression without Article 10. Why? Because Parliament is sovereign and every other law that impacts on free speech will trump the free speech that I believe the noble Lord wants to see. Evidence for that lies in the issues around policing and all the other things that he has touched on in the Chamber in his time in the House. Parliamentary sovereignty will trump common law, and without Article 10 there is currently no actionable right to freedom of expression in this country.

With respect, his Amendment 28 fails to achieve what he would like. It is much more limiting a protection than the protection in the extensive jurisprudence of Article 10. For example, to say:

“‘Freedom of speech within the law’ means”


freedom of speech that

“is not prohibited by law”

is somewhat circular.

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[Lord Moylan (Con)]

My Lords, it sounds to me that the noble Baroness is making the case for why Article 10 is insufficient. It applies already and it is not working. She has given a number of reasons why it is not working. It has not achieved the culture shift that—I think this is common ground—we believe needs to be achieved.

[Baroness Chakrabarti (Lab)]

Inasmuch as there is a limit to what any legislation can do without the resources and culture, clearly that is the case. This is an argument that people make against human rights all the time. My point is simply that, if you are legislating for free speech in any sector in this country, you have to make reference to the human right to free speech in this country. Our current legal regime means that that is Article 10.

[Lord Moylan (Con)]

With respect, I have not made a case against human rights. The definition I propose does not impinge on or restrict Article 10; it actually gives greater freedom and greater rights. I quibble at that point, because it is quite a serious point if it is being suggested that I am trying to impinge on existing rights. I am not.

[Baroness Chakrabarti (Lab)]

I beg the noble Lord’s pardon. I take the point, and I tried to make it clear that I know that he has a very libertarian instinct towards free speech, which I share. I tried to argue that his Amendment 28 is more restrictive than Article 10; that is a matter of the way that it has been crafted.

My general point is that if this area of complexity that we are entering is to be made even more complex and potentially incoherent by having two different definitions of freedom of speech—one for everyone in the country and in the Council of Europe, to some extent, under Article 10 and another in relation to universities only—then that is at the heart of the problem in a thoroughly problematic Bill.

[Lord Grabiner (CB)]

My Lords, I also apologise for not having participated at Second Reading. I have a perfectly excellent excuse: I was having knee surgery, which I am afraid has not worked out as well as I had hoped, so I will have to go back for some more. That is my reason for not having attended before.

I should disclose my interest in this Bill. In previous lives I was for nine years chairman of the LSE and for seven years, until last year, the master of Clare College, Cambridge. I am an honorary fellow at both places. I am currently president and a non-executive director of the University of Law.

Unlike some noble Lords who believe that there is no need for this Bill, I take the view that there would be great value if legislation was in place that enshrined the duties spelled out in Clauses 1 to 3. On the need for the statutory duties, I respectfully agree with the points the Minister made at Second Reading, especially when he listed numerous examples of recent behaviours that were designed to stifle freedom of lawful speech or had that effect. I completely agree. I take much the same position as the one advocated at Second Reading by the noble Lord, Lord Macdonald of River Glaven. There is a serious problem, but in key respects the Bill addresses it, though not necessarily in the best way and possibly in the wrong way.

As far as the matters that are being discussed are concerned, I will deal very briefly with one point. It has become apparent from a number of points that have been made thus far that there really should be a definition in the Bill, and ultimately in legislation, of freedom of speech within the law. At the moment, the Bill contains no definition provision at all. My view, for what it is worth, is that the definition put forward by the noble and learned Lord, Lord Hope of Craighead, is a perfectly excellent and workable suggestion.

I would not go so far as to say that I disagree with the proposal in Amendment 28 from the noble Lord, Lord Moylan, and others because at the moment I have not fathomed in my own mind the relationship between the noble and learned Lord’s proposal and the noble Lord’s. There may be some scope for a combination of the points made in both amendments—I do not know. If anything was to be added to the definition in the amendment from the noble Lord, Lord Moylan, I would be interested in seeing precisely what that was before coming to a final conclusion on the validity or worth of one amendment versus the other.

The one point that I would pick up on in relation to the amendment proposed by the noble Lord, Lord Moylan—the noble Baroness adverted to it moments ago—relates to the reference to “any confidentiality agreement”. In my view, that is far too wide. Non-disclosure agreements have developed a good deal of notoriety, especially over the last few years. If the non-disclosure agreement were to be used as a mechanism effectively for suppressing free speech—of course that is very often precisely why they are devised and forced on one side to sign up to—the reference to the confidentiality agreement proposed in Amendment 28 would not be acceptable.

There may be very good occasions when a confidentiality agreement needs to be properly respected and observed, when it is not being used for that offensive objective, to suppress free speech. There will be many circumstances, commercial as well as in a university environment, where the need for confidentiality is absolutely critical, but I would not agree simply to have a broad exclusion for confidentiality agreements.

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[Lord Stevens of Birmingham (CB)]

The noble Baroness is making precisely the point I was seeking to draw out. As we discussed at Second Reading, freedom of speech is not the same as academic freedom. We need to make sure that, in protecting both appropriately, we do not stand in the way of the kind of management action that it would be reasonable for universities to take. In a nutshell, we are saying that universities are not a single space. There is a space for freedom of speech, particularly in respect of students, but the classroom is a place for verified expertise. Perhaps in his response the Minister can give us the assurance that nothing in the Bill will stand in the way of universities continuing to exercise that function.

[Baroness Chakrabarti (Lab)]

My Lords, first I need to apologise—I forgot to declare my interests in the debate on the previous group. I refer to my academic interests as set out in the register. I also forgot to thank the Minister and his colleagues for the meeting they had with many of us last week, which I for one found very helpful in trying to unpack such a complex area.

This is a vital group of amendments in probing the class of people protected by the new duty, which dovetails with what will come later—the new statutory tort. I suspect that, in replying, the Minister will try to give comfort that the class defined in new Section A1(2) is intended to be a very wide class and to cover tenured and non-tenured academic staff, postgraduate teaching students, et cetera. I am instinctively for that.

I would even go further and say that universities are vital centres of the communities in which they are situated. They have a wonderful economic and cultural impact in the towns, cities and rural areas where they exist. One of the many things that they contribute is public lectures and meetings, where people who have never even attended university themselves get the opportunity to come and hear from world-class academics and other speakers. That is all wonderful, but it creates challenges in relation to these very divided times we live in.

One of the smaller questions that I put to the noble Earl’s team last week—for me, this is a grey area; I am not an expert in education law—is the relationship between subsections (2) and (3) and whether there is potentially an even wider group of people who may be protected and therefore have the benefit of the statutory duty. To be clear, and to go back to my comments in the first group, I want freedom of expression to be protected for the broadest group of people in our society, subject to the caveats and balancing exercises in Article 10. If a member of the public comes to a public lecture, I do not want them to be unnecessarily censored, manhandled or thrown out just for having a different point of view, even though they are not a member, staff member or student of the university. I am confident that that is properly protected by Article 10. The beauty of Article 10 is that it does not really invite lots of financial damages and therefore does not cause too much of a nightmare for the university. However, now we are talking about a statutory tort and pecuniary damages, so we have to be a little bit careful about whether the point in subsection (3) about

“securing that … the use of any premises … is not denied to any individual or body”

is not too broad in relation to bodies which are not even constituent parts of the university.

I know that the noble Earl’s team have views about that, and I certainly believe that the Government’s intention is that only the people covered by new Section A1(2) get access to the statutory duty. Subsection (3) is not intended by the Government to throw the statutory duty wide open to anybody who is thrown out of a meeting for heckling, et cetera; but I urge caution, because this clause will be read expansively, not least because of the duty in Section 3 of the Human Rights Act to which the noble Earl referred in his earlier remarks. Maybe he will have something to say about that.

Even if every heckler who is ultimately thrown out will not be protected, because subsection (3) is not intended to expand upon subsections (2)(a) to (2)(d), we have quite an issue—that is, quite an expansive category of beneficiaries under “visiting speakers”. I am absolutely clear that to make sense, “visiting speakers” here must mean putative visiting speakers, otherwise there is no point to this paragraph. So many of the stories noble Lords have complained about are about people who could have come, would have come, were invited, were nearly invited but were never quite invited because of the atmosphere there, or were denied. So, I am quite clear in my own mind that in subsection (2)(d), “visiting speakers”, must and will include—and will be found by a court to include—potential, putative speakers.

I put the scenario to the noble Earl last week of the meeting that takes place to discuss the speaking programme. A controversial name is mentioned, and the decision is ultimately made that that person is not to be invited because of fear of controversy. People are tweeting after the meeting, because that is what people on Twitter do—I am not in that category—and we now have potential litigation from the putative speaker, whatever level of controversy they excite.

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[Earl Howe (Con)]

With great respect to the noble Lord, I challenge any university to point to a provision in the Bill that changes the duties and responsibilities it has at the moment to take decisions for itself about what constitutes malignant speech, unsound science or whatever it happens to be. The Government are not trying to interfere in any way with the autonomy of universities in that sense.

[Baroness Chakrabarti (Lab)]

I am really quite surprised, because I hoped that the noble Earl was going to respond to my question, which was based on the question from the noble Lord, Lord Stevens, with some magic provision in the Bill or in the parent 1986 Act—if I can put it like that—which ensures that academic standards are specifically protected and held in the balance with the vital freedom of speech. If that is not the case we really do have a problem, because we then have the potential for one of the scientists I described in my hypothetical to sue under the new tort on the basis that they are being dismissed because of their speech and beliefs. The university will say, “No, it’s because of your bad science”, but they could say, “No, it’s because of my speech and beliefs”, and then the university would face costly, lengthy litigation.

[Earl Howe (Con)]

We always have to come back to what the Bill specifies that a university should do, which is to take reasonably practicable steps. That is governed by the circumstances and facts of the case, which the university will have to weigh up: the pros and the cons, the arguments on either side. That is nothing different from what they do at the moment. In a later group, the ninth, I think, we shall come to the issue of tort and, if the noble Baroness will forgive me, I will not cover that now, but I shall cover the questions that she asked me about who exactly we are referring to in subsections (2) and (3) of proposed new Section A1.

Higher Education (Freedom of Speech) Bill

Baroness Chakrabarti Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

I would love to be in a world where we quite simply trusted universities to exercise these fine judgments on their own. Sadly, rightly or wrongly, that world has gone. Given that we are entering this new world, transparency around what the guidance is, so that universities know where they stand, is a minimum requirement for the extra powers that this law would bring in.

[Baroness Chakrabarti (Lab)]

My Lords, I will briefly probe the amendment of the noble Lord, Lord Moylan, and probe the Minister a bit by way of that amendment. I support the amendments in the names of the noble Lords, Lord Willetts and Lord Stevens of Birmingham.

On the latter, I lament this intrusion into university autonomy, which has been going on for some time. I listened carefully to the point raised by the noble Baroness, Lady Fox: what is a university? Clearly, universities are to be places of free speech but also of free inquiry and independence from the state. They predate all the legislation that we have cited, which is really quite special. I am concerned about regulatory creep—not on employment and non-discrimination but on the content of the actual academic enterprise, if I can put it like that.

I broadly support the noble Lords in their common-sense amendments and I do not think anybody should really disagree. I do not want the Office for Students and all the rest of this architecture to be needed, but if it is going to be there then surely the duty to provide guidance should be a “must”, not a “may”, once we have entered this arena.

The amendment of the noble Lord, Lord Moylan—I am using it as a means to probe the Minister—wants the universities to

“have particular regard to the need to … (a) eliminate unlawful interference with freedom of speech within the law and academic freedom”.

Surely he should want them to seek to eliminate lawful interference with free speech too. Some of the problems that he must be concerned about are where people are not putting bricks through windows or breaching the criminal law to intimidate but are just making it not very pleasant to have debate and free speech. If he is to bring his amendment back, I say in a spirit of bipartisanship that that is a drafting problem or has not been completely thought through.

My real probe relates to something that the noble Lord, Lord Stevens of Birmingham, said last time that I found particularly revelatory. Of course a university must be a place of free speech and debate, but it must also be a place of academic excellence, or at least of academic quality. Surely that must sit alongside free speech. A university is not just a debating society or the public square; it is a place of academic improvement, inquiry and even excellence. Despite my politics, I do not shrink from the word “excellence”.

My question to the noble Lord, Lord Moylan, is again on the territory that we opened up with the Minister last time: where in this proposed statute or any other, if we are going to be prescribing duties around free speech, are the duties to protect academic standards? It was the noble Lord, Lord Stevens, who opened up this issue in my mind and I have been worried about it for the last couple of days. If free speech trumps everything, or at least academic standards, and those standards and the duty to maintain them are not prescribed in law, what happens with bad science and fake facts? What happens when a person declares that they must be protected from management, and possibly even from losing their post, because they are just writing and teaching rubbish? Our students, who are now consumers, deserve better.

[Earl Howe (Con)]

I am not sure the noble Baroness was in the Committee when I covered that very point quite near the beginning of our debate today. I tried to cover it on Monday but I expanded on it today as well.

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[Lord Willetts (Con)]

Briefly, the debate we have just had shows why the amendments are necessary. They do not change the underlying framework of law but make explicit something which otherwise would just be implicit. There are benefits for universities and people participating in them by it being explicit.

[Baroness Chakrabarti (Lab)]

My Lords, I forgot to declare my interests as a visiting professor of practice at the LSE and in receipt of research services from a PhD student from King’s College London. To support the noble Lord, Lord Willetts, if this is becoming such a difficult area, it will be tempting for regulators that “may” issue guidance not to do so in a particular contentious area. We go down this road or we do not, to some extent. If there are rows between competing minority interests and around particular foreign policy issues, then if I were a regulator, it would be all too tempting to sit back. That has sometimes been the case in the past, whether with the police or regulators. That is in support of the rather tighter duty that the noble Lord, Lord Willetts, proposes to put on the regulator.

[Baroness Thornton (Lab)]

My Lords, I am not going to say very much because this debate has covered most of the ground that we need to cover on how this issue should be decided. However, I always listen to the noble and learned Lord, Lord Hope, very carefully. When he says that simplicity is best, that is probably right. We definitely find Amendments 33 and 54 to 56 the more attractive amendments. As my noble friend Lady Chakrabarti said, they are the common-sense amendments. I am more attracted to them than to Amendment 31 in the name of the noble Lord, Lord Moylan.

This debate has shown, and I agree with those who have said so, that while the words in the noble Lord’s amendment are of course very laudable, actually it is the words that go in the Bill and create the law that are important. That is our job here in this House. It is certainly not our job to put words into legislation that might create more confusion and proclaim values at this stage. The Minister will probably tell us how the Government feel about that. My noble friend Lord Smith outlined in the earlier debate what a hard job the leaders of our universities have in balancing their duties and rights. That was amplified by the noble Lord, Lord Willetts, when he spoke to his amendment.

In reflecting on the remarks of the noble Lord, Lord Moylan, I do not think that this amendment would have stopped what happened to Kathleen Stock. That was a failure of the leadership of her university to fulfil their duty of care to her and their need to promote free speech in their institution. This amendment would not have stopped that, because it is to do with how that university conducts itself.

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[Lord Moylan (Con)]

My Lords, I am grateful to all noble Lords who have spoken in this debate. I hope they will forgive me if, in the interests of time, I respond only to the comments made by my noble friend Lord Willetts.

First, I must congratulate him on his masterpiece of oratory whereby he implicated our noble friend the Minister in his view such that it would appear almost churlish, by the time the Minister came to respond, that he should disagree with my noble friend on almost any matter at all. I have much to learn from him in that regard.

However, I wish to turn to one point made by my noble friend Lord Willetts. It has struck me with increasing force because it builds on something said earlier by the noble Baroness, Lady Falkner of Margravine, and other noble Lords: that nothing will be changed by this Bill and all change will be achieved by the code of conduct. That seems to be the message; in fact, it was almost explicitly the message given by my noble friend. I have been in your Lordships’ House only a couple of years but the tendency I have seen here is to say that, where guidance of a binding character is to be issued, we should scrutinise it and set the terms for it. When it came to what the College of Policing is doing about non-crime hate incidents, it was a united view across the House that the guidance issued by the college should become statutory guidance precisely so that we could scrutinise it.

Here, however, we seem to be taking a completely reverse approach. Nothing must appear on the face of the Bill, and everything must be left to the guidance to be issued by the Office for Students. As far as I can tell—I am open to correction by noble Lords—this guidance is not to be the subject of parliamentary scrutiny nor issued through the “made affirmative” process as a statutory instrument. It is not to come to our attention in any way at all. We are simply abdicating all the guts of the Bill to the Office for Students in how it will apply. I simply say to my noble friend that I find this really rather strange. I am tempted to suggest to him that, if my amendments were reformulated not as obligations on universities but as obligations on the Office for Students to include those things in the guidance, his principled objection would fall away—or is he absolutely determined that the Office for Students should have a completely free hand, with no parliamentary scrutiny, in how this Bill will be implemented if it becomes an Act?

I raise that as a challenge to what I might call the forces of institutional conservatism, which range across the Room—those who wish to see nothing change. Are your Lordships really suggesting that change can be achieved only by abdicating our responsibilities to a relatively new public regulator?

[Baroness Chakrabarti (Lab)]

I congratulate the noble Lord, if I may—he congratulated his noble friend in what became an absolute tour de force of a response itself. I have huge sympathy for his general proposition that in this place we allow too much not to be in the statute book and delegate far too much to secondary legislation and even to guidance. It is often something that we do when we are giving overly broad powers and we have made a bit of a mess of the legislation—“Don’t worry, it’ll all be sorted out in guidance.” However, I have to say, in fairness—perhaps I have become part of the new forces of conservatism; that I am now considered a conservative will show you how much politics has moved to the right in this country—that there is a qualitative difference between coercive police powers and pedagogy and creating a culture of learning and inquiry in an academic establishment, which would be very hard to legislate for at the level of detail that I personally would like something such as police powers to be provided for. I have huge sympathy with the noble Lord’s general proposition that bad law leaves a lot of stuff to be dealt with later invisibly by guidance but I am not sure that the analogy with police powers and creating cultures in universities is quite comparable.

[Lord Moylan (Con)]

I have to say that I am sinking in sympathy on the general principle in this Committee, which is coming at me from every side. Nobody lacks sympathy with what I am saying—in general. It is only in the particular that they object to what might be put forward to practical effect—I am always open to the charge that I may have erred in drafting and may have got the wrong approach, and all that—but without substituting any particular proposal for the ones that they particularly find objectionable in my case. I agree that it is not a suitable parallel. Coercive police powers are not a suitable parallel with pedagogy—I picked it off the shelf—but they are perhaps a suitable parallel with somebody being driven out of their job because of particular views, because that too is a coercive act. If they are not defended from being driven out of their job, and we are simply saying that it will be dealt with by guidance and not in the Bill, what are we doing? They are skewered, because they now admit the need for change but they want it done by somebody else.

I now come to my noble friend the Minister, because I really must wrap up, and we have to move on.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I really welcome the contributions of the noble Lords, Lord Sikka and Lord Moylan, on their amendments, because this issue of money is important and it is a good way of getting the discussion going—or not just to discuss for the sake of it.

What I cannot get my head around is how in any way you can legislate on this. I cannot see a way of doing it, even though I think I have added my name to one of the amendments. But it is important to discuss this. As I listened to the noble Lord, Lord Sikka, I thought he made a very strong case for the problem of corporate funding of research if it distorts outcomes. Nobody wants that, but I do not necessarily know that I do not want any corporate funding of research—so the question is how you deal with it.

It is also the case that, these days, some of the big players in terms of funding are charities or NGOs. We mentioned the Wellcome Trust, which I worked with for many years. It is true that the Wellcome Trust would often say, “These are our priorities this year” and you knew that, if you wanted a Wellcome Trust grant, you had to fit your research into those priorities. That had a distorting impact—I am not suggesting it was corrupt in any way, but you knew that was the way that you would get the money. I certainly know people who shifted their focus in order to get the grants.

This is important in terms of academic freedom. I wonder if the popularity of politicians saying, “The evidence shows”, and evidence-based policy being fashionable incentivise a tendency towards politicised research outcomes. There is a sense in which a lot of academics have wanted to be in on the policy discussion, often with outcomes predetermined. There have been times when I have said to Ministers, “Where’s the evidence for that?”, and they have said, “We have commissioned the evidence”—but they were announcing the policy. Do not tell me that it has not happened before because it happens all the time. They have commissioned the evidence from a university, in fact. I am just saying.

The reason why I think it is important that research is completely separate from that is because there is a place where academic freedom is under the surface and genuinely under threat, although I do not know whether the law can change that. I know of two people who put in for research on detransitioning—to raise that issue—and they were told there was just not a cat in hell’s chance of getting any funding for that because it was going to be too controversial. Whether we like it or not, the broad problems around some of the other issues in terms of what you can and cannot look at are affecting what is funded in terms of research, particularly postgrad research. There are a lot of complaints about that when you meet postgraduates.

By the way, that does not mean I do not appreciate what the noble Lord, Lord Stevens, said. It is also the case that people can for ever more moan that they are not getting their research funded when it is actually no good, and that actually, you do want academic judgment. I am just pointing out that politics enters into it.

The one thing that I am really concerned about is that UKRI, which after all distributes billions of pounds of research money, produced a draft equality, diversity and inclusion strategy—my favourite topic—earlier in the year, in January, which is a cataclysm of management-speak and right-on political outlooks. You could write it; you know exactly what it is going to say and do. A lot of it is about its staff, which is fine. I have no objection to that. But I worry when it starts basically to express its political aims. You have to question its impartiality.

As far as I am concerned, in the sciences the money should be given to the best science that advances knowledge; it is not humanities research, which is likely to give us interesting insights, and so on. But UKRI demands of people that apply for it that they deliver on the diversity and equality outcomes. A lot of people who read that immediately thought, “How do I prove that?” That is a layer of work that you have to do that you do not need to do. The document sounds quite threatening: “If you don’t tell us when you apply for this that you’re going to deliver on these things, you won’t get it.” So great science is sidelined in the name of equality, diversity and inclusion. That is something that we have to watch. I do not know if the Bill can do anything. I am hoping it will create a climate of discussion about the importance of academic freedom that will counter some of these trends and some of the secret censorship that goes on behind the scenes.

[Baroness Chakrabarti (Lab)]

My Lords, like the noble Baroness, Lady Smith of Newnham, I would be grateful for guidance from someone as to how often one is to redeclare interests in the course of Committee. Should one do it in every group that one speaks on? I am sure there is an answer and that this is just my ignorance. I gather that it is once, but is it once a day or once in Committee in total? I have done it today.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

For clarification, it seems that it is once for the Committee stage rather than each time we speak.

[Baroness Chakrabarti (Lab)]

I am grateful to the Deputy Chairman. I hope the Committee will forgive my ignorance; I hope that will help others as well.

I think noble Lords are really on to something here. I have found all the previous contributions compelling. They speak to aspects of my own experience. I have seen the way that funding can either promote or chill free speech, expression and academic inquiry. I understand that there are real challenges in this area. In particular, it is going to be very difficult to compel a corporation in any way to fund research that would be directly contrary to its interests. However, I do not think that we should totally give up on all of this; I do think that my noble friend Lord Sikka and the noble Lord, Lord Moylan, are on to something.

Higher Education (Freedom of Speech) Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 14th November 2022 Lords Chamber

[The Duke of Wellington (CB)]

My Lords, I first declare my interest as a former chairman of King’s College London. In that position I was a layman, not an academic—we have had a number of very informed academic contributions—and I am certainly not a lawyer. I regret that I was not able to be present for Second Reading; I hope noble Lords will forgive me for intervening at this stage.

I am very surprised that the Government have sought to introduce this Bill at all, and certainly Clause 4. I have not yet detected a single Member of this House who is seeking to defend Clause 4 as currently drafted; every contribution has wished either to delete or amend it. The noble Lord, Lord Johnson, is in his place. He introduced the higher education Act a few years ago when he was Minister for Universities. I admit that I opposed many aspects of that Act. Indeed, the noble Lord, Lord Johnson, himself described it this afternoon as having introduced a very powerful regulator in the Office for Students; I would say that it is too powerful already.

However, we do have the Office for Students, and I really cannot understand the justification for putting into the Bill a statutory tort as well as the existing arrangements we have for the regulation of universities. On the whole, universities are surely one of the sectors of this country that have performed outstandingly well over many, many years. We have some of the leading universities in the world. We are recognised as being in that position; our universities are admired. Rather like the noble Lord, Lord Blunkett, I think I am opposed to the whole Bill; but I am most definitely opposed to Clause 4.

We all have such respect for the noble Earl, Lord Howe, and I do hope that Ministers will seriously consider withdrawing Clause 4 as currently drafted. If it is still in the Bill when we reach Report, I shall certainly oppose it—as, I believe, will many other noble Lords.

[Baroness Chakrabarti (Lab)]

My Lords, it is a privilege to follow so many contributions from noble and learned Lords across the House. I declare my interests, first as a lawyer—unashamedly; we need to be loud and proud in these difficult times when we are so denigrated—but also my academic interests as listed in the register.

Like other noble Lords, I would prefer not to have the Bill at all, but this is not a Second Reading moment. It is a combination of virtue signalling on the one hand and “something must be done”, in the context of very difficult times culturally, with a polarised society, intergenerational disputes and so on. However, in a Bill that is not great, Clause 4 is the worst part.

Against myself, I would rather go back to a halcyon age where universities were largely self-regulating, as I think it was a rather good way of preserving their academic and free speech independence; but perhaps I am a dinosaur to think that universities could be self-regulating. I do understand that, when a lot of public money is being spent on universities, people will be concerned that they should not be totally self-regulating—and they are not, in existing law. But Clause 4 is problematic for a number of reasons that have been well drawn out—and not just by the lawyers, I might add; some of my asterisked and underlining notes are from the contributions of non-lawyers with practical experience of the academy.

To get into the “otiosity”—if that is a word—dispute between the noble Lord. Lord Pannick, and the noble and learned Lord, Lord Hope, I am probably, not for the first time, with the noble Lord, Lord Pannick. If Clause 4 were removed—incidentally, what is it about fourth clauses? I am glad that my noble friends on this side are giggling at that and are not upset. My reading of the Bill if it existed without Clause 4 is that it would give some further definition to the rights that already exist under Article 10 of the ECHR, which deals with free speech, and the duties placed upon public authorities to respect that duty in relation to those who would otherwise be deprived of their free speech rights in a university.

The noble Lord, Lord Johnson of Marylebone, made an important point: it is one thing to say that a university regulator that already exists and has all sorts of duties relating to this publicly financed space will take on extra responsibilities and concerns around guaranteeing free speech, but another thing to have, alongside all that architecture, a new statutory tort that brings financial compensation into it. Those things stand in tension, which is why I also have sympathy with the noble Lords, including the noble and learned Lord, Lord Etherton, and the noble Lord, Lord Sandhurst, who said, “Let’s at least try to define this new Clause 4 duty or look at what it is we want to achieve by it.”

My own understanding is that courts and employment tribunals should already be ensuring that people’s free speech is protected in the context of their employment and appointment rights. If that is in doubt, so be it: provide for that in the employment law system, the appointments system and the regulatory system. But to create a free-standing and wide-ranging tort, which by definition would bring financial compensation in a context where civil legal aid is virtually dead in our jurisdiction, is an invitation to think tanks and NGOs, including international ones, to do what some people call making mischief—although, as a lifelong mischief-maker myself, I perhaps should not bang on about that too much.

Clause 4 will do the opposite of what is intended. What I believe to be intended is that we should once again be encouraging the clash of ideas, even when they are uncomfortable—even, occasionally, when they are offensive—in the academic space. To hand the right to litigate to people who should be debating, not litigating, is by definition to be handing it to some and not others. I have no doubt that that will have the opposite effect from what is intended.

The noble Baroness, Lady Fox, said, “Will it be just about financial loss or should it be about other kinds of loss as well?” One needs to be very careful about that in the context of free speech. I have been called a bigot. I do not think I am a bigot and it is not nice to be called one, but if people want to call me a bigot, they need to be able to challenge me on my prejudices, including in the academic space—and including in this Committee, where we are protected. Our free speech is protected in this place more than most people’s in the country and around the world, and we should be careful about imposing new duties and obligations that bring litigation in the name of free speech.

I have concerns about it still, but if this Bill must pass, let it be about regulating universities and empowering them to do better in the difficult navigation exercise that they have. Let it not be a recipe for more litigation, under a Government who are always saying that we have too many “activist lawyers” and human rights lawyers—do not get me started as this is the language of the current Home Secretary and former Attorney-General. What a contradiction it is to say, “There is too much activist litigation” and then to design a recipe for more and more of the same.