Higher Education (Freedom of Speech) Bill

Baroness Falkner of Margravine Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

Again, on not balancing but strengthening freedom of speech, I put it to the Minister that a duty of care would require universities to think through the consequences. Nothing could be clearer than the cousin of someone murdered—that is a factual statement—allowing free speech: that is, not restricting speech but ensuring that they have the opportunity also to have a say somewhere, not in contradiction but as well. They are empowered from within that situation by their own university. If it is an 18 year-old student versus an experienced political hack or social commentator, there is an imbalance of power there. I strongly advise government that this strengthens the freedom of speech legislation. It does not balance it and it absolutely does not weaken it.

[Baroness Falkner of Margravine (CB)]

My Lords, first, I want to refer to the remarks of the Minister to clarify something; I have not had the opportunity to look at Hansard immediately since he spoke on the previous group of amendments. I think I said on Monday that I was speaking in a personal capacity. The Minister has put on the record that I chair the Equality and Human Rights Commission. However, I was not speaking as the chair of the Equality and Human Rights Commission, but in a personal capacity.

The reason this is important is because I have taken advice from the Registrar of Lords’ Interests. As the commission’s powers in terms of protected characteristics are so wide, I would be able to say almost nothing were I to adhere to his advice that I should not speak on anything where the EHRC has a policy. For the rest of this debate, to put that correction on the record, I would like to make it clear that I will speak only as chair of the Equality and Human Rights Commission when I specifically say so in my opening remarks, and I will always tell the Committee that I am speaking in a personal capacity when I so do.

I would like to speak in a personal capacity to warn the Grand Committee to be extremely careful about the amendment from the noble Lord, Lord Mann, which seems on the face of it to be perfectly reasonable. We do not need to be concerned about his perfectly valid and good intentions, but his peroration has made one extremely concerned about what he would expect to happen through that amendment. The noble Lord referred to the fact that the opponents of a speaker have an equal right to protest or drown out what is being said. He says that their right to be empowered is equal.

[Lord Mann (Non-Afl)]

I am absolutely categorical that the drowning out and breaking up of a meeting would not be acceptable in a democracy, but the right to have a counter-speech or a protest is a fundamental part of democracy.

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[Baroness Falkner of Margravine (CB)]

I think the noble Lord does not quite appreciate how qualified Article 10 rights are under the European convention. It clarifies:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.


It goes on to say that those rights can also be circumscribed

“for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others”.

The point here is that they are qualified. The judgment of qualifying those rights, and making decisions about when the qualifications will apply, should rightly lie with the provider and not necessarily be set out in legislation.

The noble Lord referred to the duty of care to students. Of course there is a duty of care to students, but providers have been delivering those duties of care to students, academics and staff throughout this period. There is no evidence to say that they are not capable of doing that, so we can move forward with the Bill.

As I said on Monday, my personal view is that, although the Bill is significant and important in setting out more clearly the importance of differing opinions and viewpoints, the danger we run here is of it leading to so many changes that it actually succeeds in suppressing speech. No one has a right not to be offended. We are in danger of conflating that right not to be offended with safeguarding rights or hurt or distress, which is where we might go were we to pursue this amendment.

[Lord Grabiner (CB)]

My Lords, I will be brief. In his remarks, the noble Lord, Lord Mann, gave some extremely significant examples. Some very bad stories are no doubt out there but, with great respect, might it not be more appropriate for such matters to be dealt with in the code of practice rather than in primary legislation? It seems much more sensible to deal with this by way of advice to, for example, university institutions.

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[Lord Smith of Finsbury (Non-Afl)]

I would not fundamentally disagree with either the noble Lord or the noble Baroness about the free exploration of ideas and knowledge being central to the purpose of a university; that is almost self-evident. However, we need to ensure when we are putting legislation through the House that we are not imposing impossibilities on the people who lead universities, making it very clear to universities, colleges and student unions that they have a responsibility to promote freedom of speech and a responsibility to promote respect for all students within their community, for example. That is a sensible approach to ensuring that the Bill achieves what we all might want it to achieve.

On Amendment 69, I have a lot of sympathy with clarifying the Prevent duty in the way that the amendment suggests. That might be a rather useful way of ensuring that Prevent becomes rather more sensible than perhaps it has tended to be over the last few years.

[Baroness Falkner of Margravine (CB)]

My Lords, I declare an interest as chair of the Equality and Human Rights Commission, as Amendment 35 specifically relates to the Equality Act 2010. I hope that my remarks will clarify the intentions of the noble Lord, Lord Moylan, as regards the Equality Act, because I have a great deal of sympathy with what he is attempting to do. I also have an enormous amount of sympathy with some of the comments of the noble Lord, Lord Smith of Finsbury, because, in a much more tangible way, they set out what some of the problems are.

I will speak very briefly. My first point is that the public sector equality duty is not specifically concerned with freedom of expression. Our assessment in the commission is that, although there may be some evidence —the point made by the noble Lord, Lord Moylan, is a strong one—that more recently this has become a tool used by universities to avoid their duties in terms of freedom of expression, nobody has mentioned that other part of the Equality Act and the public sector equality duty, which is the need to foster good relations between groups who share protected characteristics. Therefore, that duty—the need to foster good relations—allows those who wish to hide behind the public sector equality duty to use it that way. Universities sometimes tend to use the fostering good relations duty a bit too widely, but because it is not circumscribed and does not define what it means, they can so do.

We have guidance on freedom of expression for higher education providers and student unions across Britain. When a university considers whether to permit an event to take place, it must take account of all its statutory duties, as the noble Lord, Lord Smith, referred to. These include Section 43 of the Equality Act, Article 10 of the Human Rights Act, student unions’ obligations under charity law, and the Prevent duty, as well as the public sector equality duty. Balancing is therefore a necessary task that they must do. My sympathy with those institutions lies in the fact that, in every case, every decision will be different depending on the facts of the decision. In that sense, balancing will be a necessary exercise, irrespective of whether his amendment is accepted or not. Having “particular regard” nevertheless places it in a hierarchy.

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Something could be attempted in this Bill. It will not solve the complexity of the problem that my noble friend Lord Triesman described, where people are just given a nod and a wink and told, “You ain’t going anywhere in this town; you’re not going to get funded or refereed”. Some of this stuff is never written down. It is a nudge; it is cultural. You cannot deal with that in statute but, if Ministers and the Government ever abuse their financial relationships with other public bodies, that can be legislated for, to some extent. If corporates—or, for that matter, philanthropists, NGOs or charities; whoever they are, whatever their politics—put clauses into research grants or contracts that the Committee thinks are contrary to our consensus idea of academic freedom and free speech, those gagging clauses can be made unenforceable as a matter of statute. That may be something that the noble Lords who have done the work in this area might want to contemplate for the next stage of the Bill.

[Baroness Falkner of Margravine (CB)]

My Lords, on this occasion, I declare my interest as chair of the Equality and Human Rights Commission.

I had a lot of sympathy for the myriad examples put up by the noble Lord, Lord Sikka. In fact, beyond sympathy, to address the noble Lord, Lord Moylan, I had some deep concerns. However, on hearing many of those examples, they were entirely familiar to me. I recall having come across them in the media, if nowhere else.

The point made by the noble Baroness, Lady Smith of Newnham, about how this amendment would apply to third parties commissioning research was really significant. All manner of bodies use university academics to do a piece of research for them, including collecting and collating survey evidence and/or other evidence—particularly in the social sciences and humanities, where it is a bigger problem because the boundaries are less clear-cut.

In the past, much of our non-statutory guidance has been based on that kind of research because you seek to find an evidence base for whatever you are saying. We have had complaints about some of the stuff we have said; in fact, my daily joy is opening my parliamentary email and finding complaints addressed to me in that capacity rather than the correct capacity. However, when you look into what people are complaining about, you can find that the survey evidence was perhaps interpreted in a certain way or that the methodology does not stand up today to the contemporary standards that one would wish to use. The noble Baroness, Lady Chakrabarti, rightly raised some of the ambiguities that lie there if this serious and important amendment is taken away and reflected back to us on Report.

The noble Baroness also raised the issue of academic standards. You get a great diversity in institutions as regards the quality of research. If you found that you perhaps ended up having commissioned an institution that did not deliver for you, I would hope that any amendment that we might seek to make would emphasise the fact that you can only take reasonable steps and that where it says in proposed new Section A8(2) that

“providers must not require changes to academic research as a condition for a grant”,

the change does not come at that stage; it might come when you look at the data collection.

An example of data collection in our case is that the majority of the UN conventions that we apply tend to have been written immediately after the Second World War, generally between 1945 and 1960, and they use language that muddies the water. The convention on the elimination of racial discrimination is a good case in point because it refers over and over again to nationality, whereas frequently what we look for in racial discrimination is not necessarily the Polish person suffering race discrimination but potentially the Afro-Caribbean or African or Asian person. You commission the research and then you discover that the dataset does not hold up, because nationality was taken into account by the researchers rather than particular ethnicity; you might have wanted a narrower framework.

I urge the Minister, if he is inclined to take on board the amendment, which is significant and important, to clarify those things for us when we come back to this.

[Lord Willetts (Con)]

My Lords, I will briefly make three comments on this debate; I realise that I will not occupy the same moral high ground as most of the participants in the debate so far.

The reality is often that co-funding, with public money and private money, is going into research projects which are believed to be of value for the British economy. I will give your Lordships a simple example. You may find that some public funding is going into a wind tunnel and some Rolls-Royce money is going into it so that it can research the functioning of a jet engine and improve Rolls-Royce’s capacity to be a market leader in jet engines. A lot of that goes on. Indeed, in a different part of the woods, we are told that more of that should go on and that we should be thinking more fully about how we use publicly funded research to promote business investment. There are lots of reasons for being wary but those type of relationships exist, and if anything, are being encouraged, and would not be possible under the provisions here. That is my first point.

Secondly, the American pressure on us with regard to the research we conduct and then publish, is because by and large they think we are very naive about what they call dual-use research of concern. They think that we publish lots of stuff which is the equivalent of publishing nuclear physics in the early 1930s. There is a lot of pressure from them for us to publish less, and they think we are naive about some of the possible implications of the research. If we are to have research partnerships with these international partners, if anything, the pressures are the opposite of the ones we have been hearing this afternoon.

My third point is really a question for the Minister. This is an issue which raises another angle where there is concern about this legislation. It is marvellous to have a Minister from the Department for Education as well as a Minister from the Cabinet Office. Several provisions of the Bill relate to the activities of BEIS and our research effort. The research activities of universities are not part of the DfE, and it would be good to be reassured that, on many provisions of this legislation which affect research capacity, we will have the voice of the business department, which is the ultimate responsible body, and that there has been suitable liaison across departments so that implications for research and innovation are properly considered as part of our deliberations.