Higher Education and Research Bill

Baroness Deech Excerpts

Committee: 6th sitting (Hansard): House of Lords
Wednesday 25th January 2017 Lords Chamber

[Baroness Garden of Frognal]

My Lords, I added my name to the list, as the noble Lord, Lord Stevenson, said, in the absence of my noble friend Lord Macdonald of River Glaven, who has overriding university commitments. He is a great expert in this area and has briefed me.

The application of Prevent to the university sector is different from its application to any other category of public body. In a university, the Prevent duty has the wholly unwanted effect of undermining an essential pillar of the very institution it is supposed to be protecting to the wider detriment of civil society. First, universities have a pre-existing statutory duty under Section 43 of the Education (No. 2) Act 1986,

“to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”.

Secondly, because of the foundational importance of free expression to intellectual inquiry and therefore to the central purpose of a university, which cannot function in its absence, it cannot be appropriate, in the university context, to seek to ban speech that is otherwise perfectly lawful, as the Prevent duty requires it to do.

The Prevent duty requires universities to target lawful speech by demanding that universities target non-violent extremism, defined in the Prevent guidance as,

“vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs”.

If applied literally as a proscription tool in universities this definition would close down whole swathes of legitimate discourse conducted in terms that represent no breach whatever of the criminal law. It is very difficult to imagine any radicalising language that a university should appropriately ban that does not amount to criminal speech in its own right, such as an incitement to violence, or to racial or religious hatred and so on. These categories of unlawful speech should therefore be banned by university authorities to comply with pre-existing law. To do so is entirely consistent with free expression rights and academic freedom. But banning incitement speech is sufficient. Apart from anything else, it is this speech that is more genuinely “radicalising”. We do not need Prevent in universities to protect ourselves. We need just to apply the current criminal law on incitement.

In the university context, “radicalising” speech that is not otherwise criminal should be dealt with through exposure and counterargument. Universities should be places where young and not so young people can be exposed to views and ideas with which they disagree or find disturbing, unpleasant and even frightening, but be able to address them calmly, intellectually and safely. Freedom of speech should be an essential part of the university experience.

[Baroness Deech (CB)]

My Lords, I regret that I have to challenge the view that has been put forward by Members here whose views in general I respect greatly, but I pin my remarks to a phrase used by the noble Lord, Lord Patten, just moments ago. He said that students come from overseas to this country for a great education in a liberal, plural society. Unfortunately, great damage is being done to precisely that concept. In no way would I dissent from a view expressed that freedom of speech within the law must be allowed. Non-lawful speech—and there are lots of statutes, whether you like it or not, that make speech illegal—should not be allowed, but the universities are not doing their duty.

I shall give a few examples. Jihadi John was a university graduate; Michael Adebolajo—Lee Rigby’s murderer—was at the University of Greenwich; the underpants bomber, Abdulmutallab, was at UCL. There are numerous other examples of killers who were radicalised at university right here. That is because, although the Prevent duty guidance requires such speech that we disapprove of to be balanced, this is not happening. Speakers are turning up and giving speeches to audiences that are not allowed to challenge them. At best, they can only write down their questions. There are tens of such visiting speakers every year—there are organisations that keep tabs. Just over a year ago, at London South Bank University, a speaker claimed that Muslim women are not allowed to marry Kafir and that apostates should be killed. A speaker at Kingston University declared homosexuality as unnatural and harmful, and another—a student—claimed that the Government were seeking to engineer a government-sanctioned Islam and that the security services were harassing Muslims, using Jihadi John and Michael Adebolajo as examples. The problem is not only coming from that area; it is the English Defence League turning up to present its unpalatable views too.

It is incomprehensible to me that the National Union of Students opposes the Prevent policy and has an organised campaign to call it racist—a “spying” policy and an inhibitor of freedom of speech. These are the same students and lecturers—the ones who oppose Prevent—who have been supine in the face of student censorship and the visits of extremist speakers and who will not allow, for example, Germaine Greer or Peter Tatchell to speak, but sit back and do nothing when speakers turn up who say that homosexuals should be killed.

The Home Affairs Select Committee and the Office for Security and Counter-Terrorism have identified universities as vulnerable sectors for this sort of thing. Universities are targeted by extremist activists from Islamist and far-right groups. Very often they are preaching against women’s rights and gay people’s rights, and suggest that there is a western war on Islam. They express extreme intolerance—even death—for non-believers, and place religious law above democracy.

Some misguided student unions and the pro-terrorist lobby group CAGE are uniting to silence criticism of their illegal activities. There is no evidence of lecturers spying on students or gathering intelligence on people not committing terrorist offences. Students are conspiring to undermine the policy; they ignore its application to far-right extremists, just as to far left, if there is a difference, and spread the misunderstanding that it targets political radicalism.

The Prevent guidance is necessary, but needs to be limited to non-lawful speech, which is a very wide concept and of course includes the counterterrorism Act, but I would not suggest for a moment that now is the time to lift it, especially when in its most recent report HEFCE claimed that more and more universities —though not all of them—were getting to grips with and applying the Prevent guidance in a reasonable way. I therefore oppose the amendment.

[Baroness Lister of Burtersett]

My Lords, I support the amendment. The noble Baroness, Lady Jones of Moulsecoomb, asked me to pass on her apologies, because she had another engagement and could not stay for the debate. During Committee on the then Counter-Terrorism and Security Bill, I moved a number of amendments on behalf of the Joint Committee on Human Rights, two of which would have excluded higher education institutions from the statutory Prevent duty. I thought it worth reminding noble Lords of the debates that we had then. I was a member of the JCHR at the time. The amendment stemmed from the JCHR’s conclusion—my noble friend Lord Stevenson has already quoted it, but it bears repetition—that,

“because of the importance of freedom of speech and academic freedom in the context of university education, the entire legal framework which rests on the new ‘prevent’ duty is not appropriate for application to universities”.

The JCHR warned that terms such as “non-violent extremism” or views “conducive to terrorism” are not capable of being defined with sufficient precision to enable universities to know with sufficient certainty whether they risk being found in breach of the new duty, and feared that this would have a seriously inhibiting effect on bona fide academic debate in universities. We have heard some of the problems with trying to define that in the guidance.

On Report, I summed up the mood in Committee, saying:

“In Committee, the consensus in favour of amending this part of the Bill was striking. Noble Lords did not consider that the Government had made a persuasive case for putting a statutory duty on higher education institutions—moving ‘from co-operation to co-option’, as the noble Baroness, Lady Sharp, put it”—


and we miss her wise counsel. I continued:

“Where was the evidence base? Until the evidence for the necessity of such a statutory duty is marshalled, to use the Minister’s phrase, it is not possible to assess it. Concerns were raised on grounds of both practice and principle. Warnings were given on unintended consequences and counterproductive effects, including the erosion of trust between staff and students, which could undermine any attempts to engage with students who might be tempted down the road towards terrorism. I do not think that anyone was reassured by ministerial assertions that academic freedom and freedom of speech would not be endangered. Indeed, I think that it is fair to say that the majority of those who spoke were in favour of the total exclusion of the HE sector”.—[Official Report, 4/2/15; cols. 679-80.]


I did not pursue that amendment on exclusion of the sector and focused instead on ensuring that there was a proper duty to protect freedom of speech and academic freedom, but it is clear that, despite what has just been said, the application of the Prevent duty to universities continued to cause real concern.

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[Baroness Deech]

Has the noble Baroness brought her mind to bear on whether the students who solicited the cheating essay would also be caught up in the criminal offence? This is not really my area of law, but I suspect that conspiracy to commit a criminal offence might catch those students.

As has been said—and as I know from my experience as the independent adjudicator for higher education—many foreign students, some for quite innocent reasons, get caught up in this. Part of the cure is to have better orientation for foreign students to explain to them what is expected. This applies in particular to Chinese students. I am painting this with a broad brush, but apparently they are told from the age of five onwards that one should collaborate rather than compete, and that one should listen to every word the venerable professor says and repeat it in exams, which is not the way we do things. They are therefore innocent in their own minds, so we need to clarify this amendment and ensure that foreign students know what is expected of them.

[Baroness Goldie]

I thank the noble Baroness for her helpful intervention. I cannot answer on behalf of the noble Lord, Lord Storey, but no doubt he will make some concluding remarks.

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[Lord Stevenson of Balmacara]

My Lords, this amendment deals with the question of how we put into statute a definition that will adequately cover some of the debates we had on the group of amendments before last, relating to freedom of speech. It is interesting that alongside that is Amendment 469 in the name of the noble Baroness, Lady Deech, and the noble Lord, Lord Polak, which deals with the same issue but from completely the opposite direction. Amendment 468 in my name tries to stress the need for the definition and practice of freedom of speech in premises, forums and events, affecting staff, students and invited guests. The alternative version of this, which I think aims to come to the same place, is written in terms of completely the reverse option—that is, to avoid unlawful speech by the same people in the same areas. There is a very interesting question about which of these two approaches would be better if one had to choose between them.

In some senses, that picks up the theme of the last debate, which I have been reflecting on during the interregnum of the very important discussion on the advertising of cheating services, about what we are trying to do here. Without wishing to pre-empt the discussion, I will say that I still think there are probably two issues here: first, whether we believe that our higher education providers, particularly our universities, have to have regard to the issues raised in these two amendments; and, secondly, whether there are external constraints or opportunities to use other statutes and practices to bolster that. There is absolutely no point in having the most well-worked and beautifully phrased approach to this issue if it is not implemented in practice. The problem we all have is that we may well aspire to good words, good intentions and good practice but, if there is not an effective, efficient and speedy determination of where these things are not being practised well, we will all fail. I beg to move.

[Baroness Deech]

My Lords, I have spoken many times before about freedom of speech. I want to link together the Prevent guidance amendment, this amendment and Amendment 469. In my view they stand and fall together because they are trying to demarcate the line between lawful and unlawful freedom of speech. That is all that matters, including in the Prevent guidance.

People often see freedom of speech as too broad and as encompassing everything, but it is always within the law. I anticipate that in response the Government will say that freedom of speech is already guaranteed. However, Section 43 of the Education (No. 2) Act 1986 is too narrow. It is treated as limited to meetings and to the refusal of the use of premises to persons with unpopular beliefs. Universities have not handled this well. They have wrongly refrained from securing freedom of speech where student unions are involved, on the grounds that the unions are autonomous. That is not the case under charity law, nor does it fit with the universities’ own public sector equality duty. Moreover, Section 43(8) of that same Act expressly includes student unions. Universities have treated their duty as fulfilled if they have a code of practice concerning freedom of speech.

However, the practice of censorship is spreading, both by universities and by student unions. As I have explained before to this House, many explicit restrictions on speech are now extant, including bans on specific ideologies, behaviours, political affiliations, books, speakers and words. Students even get expelled for having controversial views. The National Union of Students has a safe-space policy and brands certain beliefs as dangerous and to be repressed, without regard to what is legal or illegal. The academic boycott of Israel-related activities is illegal as it discriminates against people on the grounds of their nationality and religion, and is contrary to the “universality of science” principle. Indeed, in this era of Brexit we should point out that attempts to put barriers in the way of exchange between scientists and other academics, inside or outside the EU, who wish to collaborate in research and conferences conflict with the principle of the universality of science, and it would be the same if other European states put barriers in the way of UK researchers. A recent bad example of behaviour is the LSE, which silenced a lecture by its own lecturer Dr Perkins because of his unpopular views on unemployment.

Freedom of speech in the UK is limited. I will not give noble Lords the whole list of measures; I shall name just a few. It is limited by the prohibition of race hatred in the Public Order Act 1986, the Protection from Harassment Act 1997, the Equality Act 2010, and the Charities Act 2006 as it applies to student unions, defamation, the encouragement of terrorism and incitement to violence. There is a great deal of law for universities to take on board in permitting lawful freedom of speech in any case.

We need a new clause to go beyond meetings and make all this clear. Students have been closing down free speech and universities have neither intervened, nor protected it, nor taken action when it is lawful— or unlawful. We all recall when the Nobel laureate, Sir Tim Hunt, was hounded out of University College London. Section 43 was irrelevant, because his tasteless joke was made abroad. Universities are not taking up training offers about freedom of speech—what is lawful and what is unlawful. This amendment would ensure that lecturers and university authorities took cognisance of the law, got training in it and ceased to treat student unions as autonomous. They should know that they have a duty to promote good relations between different groups on campus under the Equality Act. I wish this amendment were not necessary, but it is.

[Lord Lucas]

My Lords, I very much support Amendment 468. It puts the matter clearly and positively. It needs doing. You only need to look at what is happening in US universities. There is a particularly nasty story coming out of Princeton today on the suppression of free speech. This ought to be the core of what is happening in universities. Within universities, we ought not to prohibit people from offending other people. There has to be the free exchange of ideas and this can be pretty buffeting from time to time. As is said in Amendment 468, if there are things going on which are illegal, then we should deal with them as illegal. Beyond that, we should not. We should allow ideas to flourish and grow and contest with each other at universities.

I do not support Amendment 469 in the same way. The idea of preventing speech requires you to know in advance what is going to be said. This means, if you fear that someone might say something, you are justified in stopping them coming to speak. This is a very difficult road to go down. Yes, take sanctions against people who allow illegal speech—this seems reasonable. If I invite a speaker in and they are then horrifically unlawful, I should face sanctions for that, even if I lose my right to arrange future meetings. However, to prevent it—to say that somebody at the university should know what someone is going to say in the future—I do not think is a good way to go.

I hope we will have the courage to stand behind Amendment 468 and say where our principles are because there is a great tide of the opposite coming across the Atlantic.

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Tabled by

[Baroness Deech]

469: After Clause 84, insert the following new Clause—
“Higher education providers: unlawful speech
All registered higher education providers must put in place measures to prevent unlawful speech by staff, students and invited speakers in the provider’s premises, forums and events.”

[Baroness Deech]

My Lords, I wish to add just a few words on this issue as virtually everything has been said. I remind the Committee how horrified everyone in this country has been at the apparent outbreak of hate incidents post the Brexit referendum. We deplore it yet we run the risk—I mentioned this in relation to the Prevent guidance—of allowing our most intelligent young people to pass through universities where an atmosphere of hate, disrespect for the “other” and bad language are being tolerated. If we want to live in a harmonious world post Brexit, we need to tackle this issue in schools and higher education institutions. In some ways this amendment does not go far enough. However, I think we all know what is at issue and, given the lateness of the hour, I shall not move the amendment.

Amendment 469 not moved.