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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.