Higher Education (Freedom of Speech) Bill

Baroness D'Souza Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Baroness D’Souza (CB)]

My Lords, this is, I think, a well-meaning Bill, but I question its necessity. I imagine no one here doubts that free speech should be protected, given it is one of the mainstays of our democratic settlement. The issue is by what means, and this is crucial because laws once on the statute book can be reinterpreted and misinterpreted. Furthermore, laws alone do not guarantee a more gentle and humane society—for that, we need a change in culture and behaviour.

Although this is clearly not the best time to uphold American constitutional rights, I have often envied American first amendment rights. The UK has never had such a codified protection of freedom of speech and assembly, but this protection in the UK is implicit in many of the laws we do have, and has existed for centuries as an almost definitive feature of British intellectual discourse.

The US Supreme Court has, in many courageous landmark decisions over the last few decades, made a clear distinction between two kinds of speech: advocacy and incitement. It has set out two conditions that must be satisfied to justify a suspension of first amendment rights. First, the words must be directed to inciting or producing imminent lawless action. Secondly, the words must also be likely to incite or produce such action. In other words, there had to be, according to the Supreme Court, a clear temporal relationship between inciteful words and subsequent criminal action. At the same time, the court provided a three-part test for determining the legitimacy of any restrictions on free speech: any restriction must be provided by law; it must serve one of the legitimate purposes expressly set out in the text; and it must be necessary. Thus, the Supreme Court ruled that a black anti-war activist who threatened to shoot President Lyndon Johnson if he were to be forced to kill his black brothers was not intending to kill the President but to state his political opposition. Similarly, an opponent of the Vietnam war was justified in expressing sympathy and support for those unwilling to obey the military draft; the judge saying

“statements criticizing public policy and the implementation of it must be … protected”

to give freedom of expression the breathing space it needs.

It is an old and tested argument that the answer to hate or offensive words is more speech, to ensure that dissent remains within the political sphere and does not stray into criminal actions. This Bill recalls many issues that have given your Lordships’ House concern in the past: banning potentially noisy protests; tolerating dissent; hate speech; and now the freedom to express contentious views in the academic context.

There is an array of Bills that afford protection to free speech, as the very useful Library briefing has set out. These include the Education Act 1986 and the relatively recent establishment of the Office for Students, which requires all publicly funded education bodies to comply with public interest governance principles. However, the Government argue that these protections are spread among a number of statutes and, despite the well-publicised events in very recent years of no-platforming and campaigns against individual academics, the Office for Students has been reluctant to exercise its regulatory authority.

The current framework allows judicial review of a decision made by any educational body, which, in turn, permits only discretionary remedies and no scope for damages. The Government’s rationale is to bring all these laws together under a single banner and to strengthen monitoring and action.

Despite the many safeguards in our political system, the worry is that this spread of free speech rules and regulations may well itself have a chilling effect on free speech, while at the same time failing to eradicate vicious attacks. The law will permit a platform for those opposed to, say, gender terminology, and it may even prosecute those who attempt no-platforming. But the culture of intolerance will continue in other outlets, perhaps with even greater vigour.

It is useful to ask how far laws change the prevailing culture. The anti-smoking laws have certainly very successfully banished smoking in public areas; compulsory seatbelts have drastically cut fatal accidents. Will this Bill enable the academic sector to remain safe from attacks by those who hold contrary views? Will it eliminate “cancel culture”? Not in a hurry, I do not think. The self-righteous anti-lobby, or “woke culture”, is well entrenched in our social media and in actions against those who do not share its views. It requires rather a lot of courage for an individual, even though backed up by legislation, to face these kinds of onslaughts. The context of protest has led to self-censorship, possibly one of the most insidious kinds of censorship. Many academics would admit to modifying views and words in order to avoid attacks, and this is not conducive to intellectual exchange or opportunities to bring new ideas into the public arena. Darwin had a really tough time in the 19th century and JK Rowling is having a tough time today.

Then there is the question of necessity. I am informed by one of my grandsons that the Oxford Union has only ever cancelled three debates, none due to protest. Are the instances of interference in academic freedom numerous enough to justify the increase in monitoring and potential criminal charges in the Bill? Are the bodies mandated to bring formal complaints and action sufficiently distanced from the Government of the day? Will potential criminal sanctions contribute to the free intellectual discourse we all wish to see flourish? There are other loopholes in the legislation that could see the regulations abused and have the opposite effect with unintended consequences. Will this legislation have the desired effect in the absence of other legislation to limit online harms, and will it eliminate cancel culture?

Can a law adequately define contentious speech and views separately from the context in which they take place? Freedom of expression and its regulation depend on context; students at educational institutions are especially in need of protection because they are usually a captive audience addressed by teachers regarded as authoritative. The conundrum is that precisely because of these factors, students may also need to be protected from language that borders on incitement; for example, pro-Nazi or extreme religious views. The task of distinguishing between offensive talk and a call to action might be a very delicate one. So my inclination is towards non-interference by the state, and this Bill will need careful scrutiny to avoid undue regulation of what is a fundamental right.