Higher Education (Freedom of Speech) Bill

Baroness Fox of Buckley Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the noble Baroness, Lady Shafik, raises some interesting, detailed points that I hope we can look at in Committee. More broadly, I welcome the Bill—although I do so with something of a heavy heart and qualms.

I regret the need for legislation to enforce what should be intrinsic to universities, academic freedom, but I have watched with horror as the HE sector has tried to balance free speech against an ever-expanding array of institutionalised values and mandated outcomes over recent years: student satisfaction targets; promotion of equality, diversity and inclusion initiatives; and external benchmarking schemes in racial diversity, gender identity and environmental literacy. All can and do undermine curriculum freedom. Then there are the demands of the REF and the managerial prioritising of employability skills—on and on it goes. In the midst of this, academic freedom can and is squeezed out and deprioritised.

I hope to amend the Bill to strengthen the idea that academic freedom is the primary duty of universities. It is what distinguishes universities from think tanks, policy and research NGOs, private companies or tutorial and teaching services. The pursuit of knowledge for its own sake and true freedom to explore and challenge ideas without fear or favour are the point of academic freedom—no ifs or buts—and what makes a university a university.

Of course, we need to be wary of government overreach in the autonomy of universities and careful of the Bill’s unintended consequences, such as the chilling effect on students’ right to protest. I get the irony of the scorn poured on the Bill as a device for cancelling cancel culture. More than anything, I do not want the Bill’s proponents to treat this legislation as a technocratic silver bullet, as though all will be well if it is passed. Beware of legalistic complacency. Many of the most egregious censorious trends are cultural, informal and deep rooted, and need to be debated and defeated through the battle of ideas.

The main challenge the Bill faces are the opponents who dismiss the need for it, as we have heard here today, and see it as a hyped-up moral panic—some kind of tedious Tory culture war against woke students. I concede that the Government’s inconsistencies do not help to reassure. A few months ago, Education Secretary Nadhim Zahawi declared that he would crack down hard on academics who espouse dangerous narratives on the Russia-Ukraine war. Does this mean that the Government’s commitment to academic freedom is dependent on academics holding the correct views on foreign policy, or should we defend the free speech of useful idiots as well as those we agree with? The elephant in the room is surely the Online Safety Bill—a huge threat to free speech in the UK, as the noble Lord, Lord Willetts, indicated. He also noted a number of other contradictory trends.

That said, I think the gaslighting of those of us who raise the growing problem of censorship on campus is a form of denialism that is unhelpful. When I wrote the book, ‘I Find That Offensive!’, on the rise of Generation Snowflake’s campus censorship, I was accused of manufacturing a sensationalist crisis. Actually, I underestimated the trend. My motives were challenged as raising the alarm; I was treated as rather dodgy. That is the same as the cheap, conspiratorial accusations we have heard in this House today that this Bill is driven by some alt-right agenda as a disguise for hate and bigotry to gain a voice.

The idea that the Bill is a sledgehammer being used to crack a nut is expressed by those who seem stuck in the past with a dismissive, “Oh, it was ever thus—nothing to see here”. We keep hearing the same evidence from Wonkhe of 10,000 events involving external speakers, and only six were cancelled, and so on. But these no-platform stats miss the important point. Comments from opposition Benches here ignore the corrosive rise of self-censorship that the noble Baroness, Lady D’Souza, raised. You do not have to be de-platformed to feel its chill wind. The NUS has a guidebook called Managing the Risks Associated with External Speakers. If you are an external speaker, as I have been many times, you are asked to sign a form promising not to say anything that would make the audience feel uncomfortable.

The message is, “Watch what you say.” Often, speakers are cancelled, dismissed, or simply warned about the content of speeches on the basis of harm and safety—“Be careful”. JS Mill’s harm principle has now been expanded exponentially to include psychological harm, pathologising debates through the prism of therapeutic terms, with trigger warnings and post-traumatic stress disorder if you hear the wrong thing and so on. Safe spaces are not about protection of physical safety, but safety in terms of protection from dangerous ideas.

The threat of external speakers being banned as a safety risk today is very different from the no-platforming of the far right in the 1980s. It institutionalises the link between words and harm. No wonder people bite their lip. As has already been indicated, the main problem is less about external speakers than about a toxic atmosphere on campus for students and staff; self-censorship is damaging to intellectual inquiry. There is a mood of snitching and “watch your back”, a system of public shaming—of reporting one’s peers for “wrong-think” for comments made in seminars or in the bar.

Only recently, we saw the University of Cambridge setting up an anonymous reporting system, encouraging students and staff to name anyone considered guilty of a wide range of listed micro-aggressions. It is no surprise that in 2017 the trade union, the University and College Union, in its own report on academic freedom, reported that 35% of its members self-censor for fear of loss of privileges or demotion. A 2020 Survation poll for ADF found that 29% of students in British universities keep their views hidden when they are at odds with their peers or lecturers, that 40% withhold their views on religious or ethical subjects, and God help any Hungarian students studying in the UK who dare to admit that they voted for Orbán if they are at universities led by people in this House. Apparently, that is enough to get you cancelled. They would stay schtum.

If the price of expressing the wrong views is that you are dubbed the purveyor of hate, bigotry or wrong-think, obviously students and staff will shut up or are so careful that it leads to an anodyne, enervated and sanitised learning environment antithetical to an intellectually lively atmosphere of free inquiry. We should also note that it is not being cancelled but the process of being accused and investigated that has become the punishment, leaving a stigma and a question mark on one’s reputation. You have only to look at the case files of Academics for Academic Freedom or the Free Speech Union to get the gist.

In October 2020, a group of LGBT activists tried to get a porter from Clare College sacked because, in his role as a Labour councillor, he voted the wrong way on the issue of “trans women are women”. I do not blame those students; I blame our generation for not setting an example to them, and I blame those people who run universities for not looking them in the eye and saying, “Academic freedom matters more than anything else.” That is why I hope this Bill will help.

Higher Education (Freedom of Speech) Bill

Baroness Fox of Buckley Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

[Baroness Bennett of Manor Castle (GP)]

My Lords, I shall speak to Amendment 36 in my name. I apologise for not speaking at Second Reading. I was then in the acute phase of Covid-19, so I guess noble Lords will all be rather pleased that I was not in the Chamber at that time.

I begin by saying that I believe that this is an unnecessary Bill that is clearly playing politics with the very important issue of how critical and independent thinking happens in our country. I share the view of the University and College Union that there are great threats to academic freedom in our country at the moment. Those threats include the extreme casualisation of many parts of the university workforce, low pay and the fact that universities are being forced increasingly to act like businesses. We see the impact that that has had on freedom of speech. At Leicester and Sheffield, universities I know quite well, we had seen that whole departments doing really creative, original, critical thinking have been decimated or destroyed by the imperative to go for business returns. However, I will resist the urge to make a Second Reading speech, tempting as it is, and focus on my Amendment 36, which is drawn from an amendment that was tabled in the other place and makes a crucial point.

Anyone who read the Times this morning will have seen some very disturbing articles about harassment, particularly sexual harassment, in our military. That is a reminder of how institutions that have existed for many centuries have accumulated cultures that tend to be extremely hierarchical, and it tends to be the more junior elements who suffer pressure from the more senior. That is where harassment can be a particular issue, as was identified by the article in the Times about the military this morning.

I bring a little personal experience in that, many years ago, before the Green Party took over my life, I was very interested in history. I went to a great many academic history seminars and one thing I noticed in those seminars was that questions were asked by the senior professors, then by the professors, then by the associate professors, then by the senior lecturers, and then by the lecturers. Universities and academia in general can be surprisingly extremely hierarchical organisations. When we talk about protection from harassment, we have to look particularly at the situation of more junior staff, especially those with the casualised contracts I mentioned earlier, as so many are.

I would prefer that the Bill did not exist at all, but since it does exist, I believe it is important that we have this protection against harassment, particularly harassment against more junior members who may find themselves effectively subjected to a barrage of attack under the guise of free speech. It is crucial that the Bill does not empower that to happen.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I support Amendments 13 and 28, which I have put my name to. In general, I support any amendments in any of the groups coming up that aim to strengthen, extend or deepen the Bill’s duty to academic freedom and free speech, and that give some ballast to seeing free speech as not extraneous to the purpose of universities but core to their mission.

The key point in Amendment 13 for me is that it notes the nature of the speech as covering speech of a

“political, philosophical or academic nature”

and that

“‘Speech of a political nature’ includes … debate of any question of public interest.”

That is the kind of broad definition that we need at the present time. Amendment 13 also seeks to clarify when steps are not reasonably practicable. It avoids the excuse often given, “We tried to be reasonably practicable but”, and instead makes free speech the default position, meaning that we are not just paying lip service to it.

This is important because we have to remember that, in the Education Act 1986, there was a clear duty to ensure free speech, academic freedom and so on. But, as other noble Lords have mentioned, it might already be in the law and yet the situation is deteriorating. In that sense, I am looking to bolster and improve or strengthen the free speech aspects of the law, not just to repeat them with threats—which is sometimes the way some people talk about the Bill.

The fact that those censorious trends have carried on despite the commitment to academic freedom in the Education Act 1986 is because universities generally argue, when controversies arise, that they are balancing academic freedom against other increasingly onerous statutory duties and institutional values. One excuse given is that of avoiding harassment, which is why I am rather concerned about the amendment of the noble Baroness, Lady Bennett of Manor Castle. I have recently found harassment to be a weasel word: for many words that we think we know what they mean, we often discover it is not quite as it was previously.

It is also why I support Amendment 28. I put my name to it because it aims to provide an enhanced sense of freedom of speech but it also—and this is key—clarifies the relationship between free speech on campus and other legal duties. The Equality Act 2010 specifies that universities must prevent harassment directed at members of their community who have protected characteristics. Section 26(4) of the Act, in which harassment is mentioned, is reasonably clear and caveated—it is not a blanket provision that anyone can say “harassment”—but because harassment is defined partially by the perception of the victim, it becomes problematic for us.

Over recent years, we have seen that universities are often overzealous in interpreting their responsibilities under the Equality Act, stressing the subjective perception of complainants and ignoring other tests in the Act. To give a couple of examples, that has resulted in the no-platforming of visiting speakers such as Professors Jo Phoenix and Rosa Freedman at the University of Essex, when it was claimed by trans activists that allowing them to speak would itself constitute harassment of trans students and staff, and the university authorities accepted that. They have since received apologies, but that is not the point I am making. This harassment excuse has added to a climate that morally devalues free speech by suggesting that it is itself harmful and that free speech can be harassment, especially to identity groups.

I suppose that gets me into the bulk of what has been discussed already: how do we define free speech? At the moment, free speech is constantly maligned as nothing more than hate speech. It is constantly said to me, “Oh, you support free speech. That is because you want the excuse to have hate speech”, or, “What is your attitude to hate speech?” I am concerned that hate speech is also ill-defined and too often amounts to little more than speech that we hate.

Perhaps we have to bite the bullet in our definitions here and recognise that there is a huge range of ideas that can be and are silenced as hateful. Even if we take hate speech at face value—something that most of us would agree was hateful, such as racist speech, bigoted views or whatever—as a free-speecher, and as I think is true in academic circles, I think we have to defend views that we do not like or consider to be bigoted. We might then have an argument about which of those views is bigoted or hateful. That is especially important in a university context because that is where we think we have the seat of debating, debunking and demolishing false ideas; that is one of the key purposes of universities in and of themselves.

One reason I worry about Amendment 3, from the noble Lord, Lord Collins, is that it claims that freedom of speech should not include freedom to espouse Holocaust denial—this is an awkward thing to talk about. It is also in Amendment 28, to which I have added my name, but I feel queasy about it. I want to probe why we would make Holocaust denial a special case. I understand that the Holocaust is a special case, and we all understand that Holocaust denial is abhorrent and monstrous, and part of the vile anti-Semitic playbook, and needs to be challenged at every opportunity. But it is not illegal in the United Kingdom. I wonder whether it is appropriate to use this legislation to make this one named exception. It might give a green light to it being said of other speech, “If that can be exempt from academic freedom, why cannot this particular hate speech be banned, even if it is legal?” There is a disingenuous strand of argument that says that the Bill will allow Holocaust denial, as though the nation’s students and academics are just waiting for the Bill to pass so that they can all rush out to deny the Holocaust. It just confuses what is really at stake here.

I want to say just a couple of other things. I have every sympathy for the amendment on the hecklers’ veto proposed by the noble Lord, Lord Hunt, and the noble Baroness, Lady Morris. But in a Bill that is meant to increase students’ rights to speak their mind, it might seem a bit of a problem to hint at restricting students’ freedom to speak, even if it is to shout loud slogans. I am genuinely torn on this, but I feel that it is the wrong thing to do, as it gives the impression that only certain people are allowed to speak; I am not keen on it.

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[Lord Sandhurst (Con)]

My Lords, I will address Amendment 26 and the consequential Amendment 71, which we need not look at. Amendment 26 effectively aims at much the same target as the noble Lord, Lord Triesman. It may be that the definition is different and it may be that we can discuss this, but the point is exactly the same: it is to include the whole of the academic community in the university. We must get these words right. If there is a practical difficulty with the use of “emeritus”, for example, we can look at it.

What is really necessary is that “academic staff” is made clear in the Bill and that it covers the range of people who are most vulnerable. The most vulnerable are not those on full-time contracts; they are the doctoral students, other teaching staff and researchers, and those on part-time or less secure contracts. It is vital that, if they are pushing forward ideas that happen to be unpopular in their particular community, but are legitimately doing their job well, they are not dismissed or otherwise penalised for holding those views and expressing them.

Amendment 26 was tabled at Report in the Commons, and on 13 June, the Universities Minister offered the following clarification:

“To clarify, the Bill uses the term “staff” to broaden the existing reference to employees, as not all those who work for a higher education provider have an employment contract or employee status. I can confirm that it will include those on short-term, casual contracts and PhD students undertaking teaching.”—[Official Report, Commons, 13/6/22; col. 72.]


I suggest that my amendment would go a little further and make it absolutely clear that it encompasses all those who will need protection.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, much has been said that I agree with. I shall speak to Amendment 26, to which I put my name. As people have been declaring their interests, I should say that I have never run an Oxford college and am never likely to, but in the Academy of Ideas, I have been working with students for a long time on the issues of free speech and academic freedom—that is the kind of work I do—and a number of those students go on to become young academics. I fully support the broadening out of what we mean by academics, because sometimes it means the seasoned prof rather than the broader community of the academy.

The recent report of the Policy Institute at King’s College London said that 41% of students agreed that academics who teach material that offends students should be fired. That is extraordinary, if you think about it: they think that they should be sacked if they teach the wrong things. I do not suggest that those students cannot be won round or that those academics will all be fired, but that is the kind of climate we are talking about. There is an institutionalised acceptance of this—which, by the way, I think is partly due to the students-as-consumer atmosphere, and the managerialism and commercialisation of universities. It is a bit like saying, “I don’t like what you teach, I find that offensive; you should be sacked.” That is one explanation of why nearly 36% say that they are self-censoring.

When I have talked to young academics, I have found that they are the ones who feel that they cannot speak out, and that they are looking over their shoulder all the time. A number of older professors who are prepared to speak out say, “Well, what can they do to me, I am about to be emeritus?” But even then they do not speak out because they say, “I don’t want my reputation to be sullied, to be slandered or to be called a bigot.” If you are trying to get research grants, or get on the ladder of work and so on, you are going to be wary.

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[Lord Stevens of Birmingham (CB)]

My Lords, picking up that last point, I support the amendments in this group that expand the definition of what constitutes an academic, but I wonder whether the Minister in his response can provide reassurance on the interaction between the academic freedom requirements of the Bill and the ability of universities to ensure high academic standards. Most of the amendments before us relate to the question of what constitutes freedom of speech, rather than academic freedom per se. I think the Minister said a moment ago that nothing in the Bill prevents bad science on campus. The corollary of that should be that nothing in the Bill should prevent universities preventing bad science on campus.

We cannot have a situation in which the academic freedom protections are used to allow those who do not believe that smoking causes cancer to continue at a medical school or those who believe in creationism to lecture in the physics faculty rather than the theology faculty, to cite a well-known example. Indeed, the University of Manchester had the discretion to take action against its PhD student who, noble Lords may have observed, is pursuing a thesis on paedophile masturbation, which is deemed not to meet sufficient academic standards. Yet under the definition of academic freedom here, those views could affect the likelihood of that person’s promotion or securing different jobs at the provider.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, if a science department employs people who do not believe in science, that does not seem to me to be a free speech issue. Even with the PhD thing, they can have those views in the bar and nobody will care, right? It is about what they teach. I am not suggesting that people should be able to carry on doing their job if they are not able to do their job, but they should probably never have been employed or signed up for the PhD in the first instance.

[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.

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[Lord Triesman (Lab)]

My Lords, I wish to introduce Amendment 14. It touches on the kinds of concerns that the noble Lord, Lord Sandhurst, has just raised and it is, in my estimation, a kind of partner clause that I want to explore with your Lordships to the one introduced by the noble and learned Lord, Lord Hope of Craighead, at the very beginning.

One of the arguments I have tried to advocate to the Grand Committee is that, if this is to work at all, it must be felt to be under the ownership of the university and higher education world. For people to address a cultural problem, they need to get to grips with it. It is not about just processes and techniques—it is to do with very fundamental feelings. However many times references to academic freedom are made, if they are not made in a way which aligns with how the academic world and the academic community understand the meaning of those words, it is unlikely to take root and will not have that cultural impact.

That is why I have raised the question, which was also raised earlier by my noble friend Lord Collins, of the UNESCO normative instrument. This was a worldwide UNESCO conference, which adopted a worldwide definition of academic freedom which had been promoted by the academic world, the very people we are trying to address, as a definition to which they could all assent and which they would all defend. I make that point because, if we are to achieve success in this, we certainly want them to adhere to it and defend it.

The work was invited by UNESCO of a body that at that time I had the great honour to chair, which was the Association of Commonwealth Universities, an association of universities literally throughout the Commonwealth. It was drafted—some bits have been cited by my noble friend Lord Collins already—in the United Kingdom and Canada, and went through a very long process to try to make sure that this was the definition of academic freedom which the world of academics would feel was theirs.

If we had gone to UNESCO slightly earlier, the noble Lord, Lord Boswell, would have been the Minister. If it had been slightly later, it would have been the noble Lord, Lord Henley. As it happens, it was just after the general election of 1997 and, as a consequence, it was a Labour Minister who spoke to it. I make that point because there was never a cigarette paper—I know nothing about cigarettes, but the Committee will bear with me—of ideological difference between us about this. There were some differences around the world about it, and one or two nations—only one or two—declined to sign it, much to the annoyance of the rest of us. Saudi Arabia declined on the grounds that it covered women academics as well, and it did not accept that anything should be a right or privilege for women academics—no rights to academic freedom whatever. If we had included a clause restricting it to male academics, Saudi Arabia would probably have signed it as well. I just make the point that this was as close to universal as you could get in academic life where, believe me, getting universal agreement is very close to impossible.

The merit of that is that it provides us with a definition of academic freedom. It may be said that there are other definitions, but this provides us with one that the academic world itself formulated, adopted, approved and, with the exception of people who did not want women to be covered by it, was accepted by everybody. I should probably add that Qatar did not like it either for the same reason, but none the less, all the rest of us did. I commend it to the Government because, if the Bill is to become law—we have expressed our anxieties about whether it is the best way forward, but it may very well do; it is government-backed legislation, after all—I appeal to them to try to ensure it brings along everyone, because short of that, its prospects in practice are very poor.

That is why I provided a small history. As it turns out, it was engendered in the Commonwealth, in institutions with which we are probably all very familiar, against the background of a set of values with which we are all familiar and opposed only by people who, if I may say so without being unnecessarily unkind, do not share some of those values at all. Aside from having the assent of the academic world and being still referred to and related to by it, it establishes in a way we would all want that if people want to get up within the law to make controversial, difficult, unpopular or any other kinds of propositions and speeches in the academic world, it is a global right to do so, signed off by the first signatory to it, the United Kingdom.

[Baroness Fox of Buckley (Non-Afl)]

I shall speak to Amendment 17 from the noble Lord, Lord Strathcarron, to which I have put my name. The amendment strenuously argues that the Bill needs to make it explicit that expressing opinions about any registered HE provider, including opinions on its “curriculum, governance, affiliations”, “teaching” and so on, will be protected by the Bill. Specifically, I want to look at a new challenge to academic freedom in relation to institutional values.

I do not know whether noble Lords saw a remarkable interview over the weekend with a couple of women, Carole Sherwood and Amy Gallagher from the Tavistock clinic. For once, this is not in relation to the gender issue and the Tavistock. One of the women had refused to accept as fact a critical race theory definition of racism as white privilege. Remarkably, the people who were teaching her in front of classes said that she would be denied her psychotherapy qualification because her views were not in line with the Tavistock’s values.

This is becoming a clearer problem that we face, because universities, or their HR and management, are signing up to third-party bodies, which then sign the universities up to values and priorities that might well be at odds with the views of academic staff. Obviously, the infamous example is Stonewall’s diversity champions scheme, but more recently it has come to light that Advance HE’s race equality charter is having the same impact. That charges universities a fee to provide advice and training to audit the university’s anti-racism strategies, themselves formulated around Advance HE’s guidance—you can get bronze and silver certificates and so on along the way. Advance HE encourages universities to highlight their race equality scores in their marketing. Arif Ahmed, lecturer at Cambridge, who has been quoted a lot today, thinks that the charter encourages what he says is virtue signalling competition between universities. I give credit to Dr Jim Butcher from Canterbury Christ Church University in Kent and the campaign group Don’t Divide Us for bringing this to light.

Obviously, we can assume that 99.9% of students and lecturers consider themselves to be anti-racist. The problem is that regardless, this is a very particular version of what constitutes anti-racism. Advance HE’s training argues that the curriculum has been corrupted by western ways of knowing; that our attitudes are shaped by whiteness. It is a version of critical race theory that says that inequality persists even in the context of formal equal rights. That is fair enough, but when it asks that question it gives some at least contentious answers, such as that unequal treatment is a product of white supremacy.

Of course academics and students should be free to hold any of those views—I am not one of those who think that critical race theory should be banned from the university, especially in the context of being a champion of academic freedom—but the problem is that when universities give CRT explicit institutional backing, that means that any academic who doubts the salience of white privilege theories or disagrees with the demand, for example, to decolonise the curriculum not only is arguing against a body of thought but ends up arguing against their employer, which puts them in a very difficult position. We have to be very clear that one should be able to argue against one’s employer or these theories, and we should not be in a situation where somebody is denied a qualification on the basis of the values of the university, which is imposed from the top down and which one is not allowed to query.

I also want to mention some qualms I have about Amendments 15 and 16, which have not been argued for. They attempt to hem in a definition of academic freedom into areas of expertise and professional responsibilities. In particular, Amendment 16 wants to remove

“and controversial or unpopular opinions”

because, as it says in the notes, they have no roots “based on evidence”. I query that, because it is very important that we have a sense of academic freedom here that is much broader than the narrow confines of one’s academic expertise. Actually, the Government did listen on this: I think they had “professional expertise” in and they have taken it out. I do not want to see it being brought back in.

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On the idea that we need to put into legislation that they should be allowed to criticise an institution, again, this could be tested by the courts. If a university was minded to dismiss someone because they were bringing the institution into disrepute at such a level that it thought it would be better not to have the services of that person in the institution, that person could test that through current employment law.

[Baroness Fox of Buckley (Non-Afl)]

I completely understand the noble Baroness’s point about terms and conditions. That is perfectly reasonable in terms of employment law, but what we are talking about here is the danger of the phrase “bringing an institution into disrepute”, which has been used by universities when people are accused of being, for example, transphobic. First, “disrepute”, in one of the amendments, is a very slippery word, as somebody said. Secondly, I was trying to draw attention to the fact that a lot of the new ways that universities are operating were never part of the terms and conditions that somebody signed up for, and academic freedom is something that you might expect of a university.

There has been a lot of talk about Oxford and Cambridge. Would a Cambridge academic not be able to criticise Cambridge University for its failure to, for example, maintain academic freedom? Is the noble Baroness suggesting that that would breach their terms and conditions, that it is egregious and that they should not be allowed to do that? It seems to me that that kind of freedom to criticise is very important.

Many years ago, I fought a strike and won, where they tried to impose on a further education college that we would never criticise what was happening in the college. It was seen then as an attack on our freedom to talk openly about education. Suggesting that if you are an academic you are going to go out and slander the college is completely different from what we are really talking about here, which is the open ability to be able to criticise when you are being clamped down on, often in free speech terms.

[Baroness Falkner of Margravine (CB)]

My Lords, I shall just deal with that. I am aware of very vigorous debate at Cambridge University, but I am not aware of the university having fired an academic for standing to defend free speech. In fact, most of the arguments at Cambridge currently are about academics who are standing up and saying to the former vice-chancellor that the current vice-chancellor is going to go and spend more time with his family and that they have had enough of him, more or less.

To my mind, the Bill could have been written in three pages. It almost goes into micromanagement of higher education institutions—autonomous institutions, we have to remember. To my mind, it makes a bit of a meal of a problem that I completely accept exists but could have been addressed in a slightly more constrained fashion. All the debates I have heard, and I read the Second Reading debate, had more and more people wanting to hang baubles on to the Bill to essentially make higher education institutions non-autonomous and to put them into a straitjacket whereby there will be a deeper constraint on free speech.

We will come to Clause 4 next time, on Wednesday or whenever, and we can talk about that then. It is a relatively good and carefully drafted Bill. We run the danger of adding so much to it—and it comes, as I said, on the back of several previous higher education Acts—that we will end up with the opposite of what we wish to see.

Higher Education (Freedom of Speech) Bill

Baroness Fox of Buckley Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

[Lord Moylan (Con)]

My Lords, that is not the intention. The use of “particular” arises because universities, both as universities and as public bodies more generally, have a range of obligations under the law. All the wording is intended to do here is to say that that particular obligation needs to be taken into account because this Bill relates to freedom of speech in academic bodies. It is not intended to give priority; it is intended to draw attention to, and have particular regard to, that matter.

In natural language—this is of course legalistic language, to some extent—one would say “to have regard particularly to that as among the other obligations that universities have”, but this is how it is expressed in legal language. I assure the noble Lord that the intention is not to trump one over the other but to require a balancing of these existing obligations and put that requirement in the Bill. At the moment, although it might be said that they both exist and it is for universities to balance them, universities are not balancing them in a way that satisfies the intentions of this Bill.

[Baroness Fox of Buckley (Non-Afl)]

I will speak to Amendment 35, to which I have put my name; it relates to amending the Equality Act, as has just been discussed. I will also speak in support of Amendment 69 in the name of the noble Lord, Lord Sandhurst, which would strengthen the academic freedom protections of the Prevent duty.

I start with Amendment 69 on Prevent. On Monday, a noble Lord—I think it was the Minister, the noble Earl, Lord Howe, but I cannot find it in Hansard so I cannot say; I wrote it down at the time—said that there is no place on campus

“for extremist views that masquerade as facts”.—[Official Report, 31/10/22; col. GC 21.]

I do not know who said that but somebody did, and it is quite a frequently said thing. I want to probe who the extremists are; indeed, I want to probe who the fact-checkers are in this instance.

During his first unsuccessful leadership bid, the present Prime Minister suggested an expanded definition of extremism to include anyone who hates Britain. It hit the headlines for a while, with people going around saying that there would be Prevent orders thrown at all sorts of people who might have been heavily critical of Britain or the UK. He backed off from it, but my point is that the whole concept of extremism has become so elastic and broadened that it has discredited whatever it was that Prevent was trying to do.

I have had a problem with the Prevent scheme since its inception. Such is the nature of today that, as this is recorded and in Hansard, I want to make it absolutely clear that this is not because I have any soft sympathies with Islamist terrorists of any nature; in fact, if anything, I think that the Government have been rather lackadaisical in not dealing with them more harshly. Putting that to one side, I was always worried about Prevent, particularly in an educational setting.

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[Lord Smith of Finsbury (Non-Afl)]

My Lords, I remind the Committee of my declaration of interest as master of Pembroke College, Cambridge, although I am of course speaking in an entirely personal capacity.

I have considerable sympathy with the amendments tabled by the noble Lord, Lord Mann. I fear some of the practical consequences of the amendments as exactly framed, but the principle behind them seems to be rather an important one. The Bill is all about ensuring that universities do what they ought to be doing, which is encouraging and facilitating freedom of speech, expression and ideas, while also encouraging the contesting and debating of those ideas. That is what an academic process has to be all about.

There is a danger in some of the advocacy for this Bill in assuming that only one kind of freedom of speech, rather than all kinds, is to be encouraged and facilitated. Ensuring that what we do here enshrines the principles of contest and debate alongside the principle of freedom of speech is rather important. I am not sure that the precise amendments of the noble Lord, Lord Mann, get us there but it is important that we find a way of doing so.

Turning to Amendment 35, as I indicated in my intervention in which the noble Lord, Lord Moylan, kindly allowed me to ask a question, I am worried about the phrase “have particular regard to” the freedom of speech duty. Universities have to take account of an array of different bits of legislation, such as the Equality Act and the Prevent duty, and their responsibilities as employers under employment law. Now, they also have duties under freedom of speech legislation. They need to find ways of balancing those duties. Putting into the Bill language implying that the freedom of speech duty should trump everything else in all circumstances seems to present us with a problem. It should not.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I think the difficulty here—this goes back to our earlier discussions—is around what the purpose of a university is. The purpose of a university is not employment or fulfilling equality; it is the open pursuit of knowledge without any restraint to academic freedom. That is the purpose of a university. It should be a space distinct from somewhere else. Surely in some ways a greater privilege has to be given to academic freedom than to those other duties. What has happened is that this has become only one of the many different things that happen on campus so universities have forgotten that academic freedom is the core purpose of a university.

[Lord Smith of Finsbury (Non-Afl)]

I think we are entering dangerous territory if we seek to argue that one bit of law is more important than another. Upholding the duties that are placed on a university generally is something that universities have to do. Giving universities the task of balancing the requirements placed on them under legislation is the way we ought to go.

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[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.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am very much in favour of Amendment 31. To put a different emphasis on it from what there has been so far, the amendment by the noble Lord, Lord Moylan, is helpful in making a positive attempt at promoting free speech. The amendment says

“foster a culture of free thought and open-mindedness, in all decision-making concerning the provision of higher education and in conducting and managing research activities”.

It is that bit about promotion that is helpful in terms of shifting the emphasis of the discussion a little bit about how we should view the Bill.

I found that I was reading this small HEPI—if that is how you say it—pamphlet in preparation for the student union group of debates later on. I found it a really interesting little book. The foreword is by Professor James Tooley, the vice-chancellor of the University of Buckingham, which has also co-published the book. I should declare my interest that I am a visiting professor at the University of Buckingham. Professor Tooley says:

“For many academics, the focus”


is

“only on the negative, on the ‘sticks’ of the law”.

He advocates that we focus on

“the positive, the ‘carrots’ of the intellectual and social attraction of academic freedom”.

Many people have said that the problem with the Bill is that does not tackle the cultural issues—that it avoids the question of what has happened to the positive association of universities with academic freedom. One of the contributions earlier asked why the 1986 duties have not worked and what the point is of bringing them under the Bill. Quite a lot has changed since those duties were brought in in the sphere of academic freedom, which is why I believe we need to pass a version of the Bill, no doubt amended, but not to use it as a silver bullet that avoids tackling the cultural issues. Anything that the Bill does to foster the promotion of free speech is very important. The main thing that I would urge is that the status quo position of “leave it as it is” is not acceptable. That is the kind of complacency that I hear. Universities will not survive and the academic standards that have just been referred to will deteriorate.

There is a tendency to blame students when we look at what has changed recently; they are either disparagingly written off as “Generation Snowflake” or, more positively, posed as uniquely sensitive to the issues of oppressed identity groups—unlike previous generations, who have never understood suffering—and having a unique insight into them. A combination of both is true. I do not want to blame students, but it is true that, whenever I talk at universities on free speech, many of them talk about it as if it were a value from “ye olden days”. They sometimes say: “We respect your right to think that free speech is important, but we have other priorities.”

I often find that commitment to free speech, on and off campus, is under strain not among the young but among the grown-ups, as it were. At best, there can be a shallow, instrumental lip service paid to the value of free speech, with so many “ifs”, “buts” and caveats that it is barely there. There is hardly a compelling case for the positive virtues of free speech, but rather a grudging acceptance that it is important, always accompanied by an emphasis on how it can play a corrosive and dangerous role in society and lead to a toxic political culture, hate crimes and, as we have heard in this debate, all these charlatan quack scientists dragging down educational standards.

Even the emphasis that the Bill and everyone else want to place on free speech within the law as a qualifier feels a bit tepid, especially when Governments of all stripes have regularly infringed free speech through legislation. As we speak, we have a Government proposing a pro-free speech Bill at the same time as the Online Safety Bill and the Public Order Bill, which are hardly wildly pro-free speech pieces of legislation. On campus, we have seen lots of academics, rather than students, introducing things that have undermined the culture of academic freedom. Whether it is mandated courses in microaggressions or unconscious bias, people feel as though they are walking on eggshells.

It is very important that we use this legislation—this is why I like Amendment 31—to make a positive case for the inviolable moral good of free speech. There was a lot of coverage of the seminar in Cambridge where, as the newspapers described it, students were trained in free speech. One of my colleagues ran it, Alastair Donald from Living Freedom; Andrew Doyle, the author of The New Puritans, spoke on Milton and Dr Piers Benn on Locke. What was really fascinating was that the reports of the students who attended last night said things such as, “I thought that coming to Cambridge would be like this, but it hasn’t been until tonight”. They also said that they often feel constrained in what they can say at university by their own tutors tut-tutting if they say the wrong thing.

When I brought out my book ‘I Find That Offensive!’ in 2016, I was warned that it was exaggerated—of course, it ended up completely underestimating the problem—and that young people would hate it and shun me because it addressed “Generation Snowflake” and the culture of “safetyism”. The truth is that, when it was published, the people who hated it were the educational establishment; it got terrible reviews in all the educational press. The people who really liked it were students. I spent two years doing a tour of all universities speaking about it. The students said, “Phew, it’s a relief to have somebody talking about this. I had never heard arguments like this before. I never really understood the history or philosophy of free speech.” It was not that they all loved me or agreed with me; they were just glad that someone was prepared to have the open discussion and debate.

We have to use this piece of legislation to promote free speech and academic freedom as much as we can. I support Amendment 31.

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[Lord Stevens of Birmingham (CB)]

My Lords, I should take the noble Baroness’s prompt and declare my interest as an honorary fellow at Balliol. I was prompted to speak by what has just been said in respect of the amendment from the noble Lord, Lord Sikka. He makes a very important point but, were this to progress beyond Committee, it would require very careful attention to the wording so as not to produce completely counterproductive results.

I was looking it up as the noble Lord was speaking, and I think I am correct in saying that, in 2019, about a quarter of R&D was via the higher education sector and about two-thirds was through the business sector. There is a sort of make-buy boundary, a decision, for a lot of research funders as to where they will get their research done. It just happens to be a contingent fact that quite a lot of that is done through the university sector, but it need not be. As worded, the amendment would capture, for example, conversations that the Wellcome Trust or Cancer Research UK would want to have with individual academic research teams, particularly about their research methodologies. Those are very productive conversations that improve the quality of research. So I understand the thought, but the precise mechanism perhaps warrants further attention.

More broadly, I oppose Amendment 34 from the noble Lord, Lord Moylan, specifically in relation to its suggestion that statute should be interfering in the discretion that universities have in grant funding allocations where the amendment says that universities would no longer be able to take into account in those grant allocations the lawfully held principles that individual researchers might adhere to. I get the bit about political opinion, but the “principle” bit is, I think, potentially quite problematic. One of the many dictionary definitions of a “principle” is “a general scientific theorem with numerous special applications across a wide field”. If you do not believe in the scientific basis of cell biology and have a particular “principled” adoption of homeopathic beliefs in bio-miasms, you will be driven in a particular direction. It seems to me that universities have a responsibility to say no to putting homeopathy funding on an equal basis with anything else. We want them, in pursuit of their distinctive mission to advance knowledge and education through structured debate and evidence-based reasoning, to be able to say no so that research on certain “principled beliefs” can be disbarred.

This comes back to the confusion that we touched upon on Monday. The Minister dealt with this point in respect of the employment of academics but, when it comes to the grant funding, we cannot have a situation in which universities’ hands are tied and they are not able to make judgments as to the merit on which those grants are allocated across their institutions. It is the inclusion of the phrase “the principles” of the contending grant application that ensures that, unfortunately, Amendment 34 as currently worded is fundamentally flawed.

[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.

--- Later in debate ---

My final point is this: of course, it may be that all 67,000 of them will not conclude that they are going to do awful things, but it is still a very small percentage that will create a very large number. That, I am afraid, is something that we have not worked out at all thoroughly and that cannot be made to work through this Bill in the way that is described.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I thought long and hard about how to approach this debate because I support the autonomy of students to organise separately without interference, not just the academic autonomy that we have talked about—although I would like that. I also appreciate the points that have just been made about students not being excluded from collegiate atmosphere; you want them to be involved in it. On reflection, though, I think that student unions need to be subject to this obligation to secure free speech. However, I appreciate what has just been said about the difficulties in that; I have no solutions but I want to raise some of the issues.

One of those issues is that student unions have become the power brokers of free speech in the new free speech wars on campus. That is the reality of the situation. They can—and often do—withhold affiliation for student societies on the grounds that they disapprove of their views. It makes them a powerful body in this discussion.

One story that really shocked me was when Kevin Price, a Labour councillor who was also a porter at Clare College, resigned from Cambridge City Council when he felt that his conscience could not allow him to vote for a Liberal Democrat Motion that began, “Trans women are women. Trans men are men”. I am not saying that to make a point; these are the facts of the matter. When they learned about his actions, student activists at Clare College, with the support of the college union—I confess that I do not know about Oxbridge because I went to Warwick, but I know that these are not necessarily student unions; my point is that I get confused—held a campaign demanding that this man resign as a porter. They described him as

“unfit both to hold public office and to be in a position of responsibility over students”.

They called him a bigot and a “potential risk” to trans students.

This campaign went on for some time. Nothing happened in the end—although, needless to say, it was very unpleasant for Mr Price—but here were student activists demanding that a member of staff, and not even a member of the academic staff, be sacked. I just think there is something about that story that we can recognise.

The only other story I want to tell involves a group of students at Sheffield University who tried to set up a free speech society in February 2020. When they applied to the student union, their application was declined. Theirs is not the only example of this, by the way; it happened at LSE, which got there eventually, and at Leeds University as well.

The group from Sheffield appealed to the student union. They won—they had some outside back-up—but were told that the student union had identified that the free speech society was on a “red risk list”. This meant that officers would have to attend risk assessment training and that they could not invite any speakers on to campus without first having to submit a list of prospective speakers to the student union three weeks ahead of time for full and final approval.

That is one of many stories that any of the people who have done work on this will tell you. I have been involved in lot of them. Students have contacted me, either through a free speech union or through any number of different activist groups. Despite what the noble Lord, Lord Triesman, asked—“How will all these societies cope?”—I assure him that they are already having to cope with a lot of bureaucratic nonsense if they want to invite anyone on to campus to speak, and it is the student unions demanding it.

I once went and spoke at a student event with 250 people. I was giving a lecture on free speech. By the time I arrived at the event, the students who had invited me—remember, these were 19 year-old kids who had set up a free speech society—looked ashen as if they had gone through a terrible experience. They had because they had had so much trouble about inviting me, but I did not know that at that point. They looked as if they were in trauma. When the event was going on, there were three people sitting in the front row with crossed arms and writing notes. I thought that they did not look friendly. I asked afterwards who they were and was told that they were student union officers who had come in to check what I was talking about to make sure that I did not breach any rules. That was disconcerting.

I then went to the bar and the same three people sat at the table next to us. I said, “Do you want to join us?” They said no, and then they sat at their table in silence. It was a bit like the Stasi keeping their eye out. The students who had invited me said, “That’s what they do. It’s an intimidation tactic”—and it really was intimidating, by the way. I am an old hand and I found it intimidating, so imagine if you are 19.

The outcome of the event was that I did not get them into too much trouble but it was felt that it was too near the mark, so the students had to go on training courses and all the rest of it. The outcome—this is the significant bit—was that the three people who had set up the free speech society at that university said that they were going to drop out of politics because they could not cope with the student union. They did not want the hassle. They had really enjoyed my speech but it was like an ordeal. As it happens, the Committee will be unsurprised to know that this has happened to a lot of students who have invited me to speak, to such an extent that I now warn them off from inviting me to speak and say, “Look, you don’t want the hassle, to be frank. It will cause you a lot of hassle.” So I do not get cancelled before I arrive because I know that it is probably not worth putting the kids through that.

The main reason why I am telling the Committee all this is that it is the student unions that are implementing all this. In that sense, my collegiate feeling towards student unions have evaporated somewhat, but my collegiate feelings towards those students who want to be politically active have extended. I am hoping that, by incorporating student unions and putting free speech at the forefront, this Bill might help students to be free to organise societies as they wish.

[Lord Smith of Finsbury (Non-Afl)]

My Lords, I should probably have declared an interest when I spoke earlier, not just as the master of Pembroke College, Cambridge, but as the chair of the trustees of the Cambridge Union Society. It is not a student union. It has been a place of free speech since 1815 and continues to be so. The student officers of the Cambridge Union Society regularly invite highly controversial speakers with whom there will be substantial disagreement among the student body, but the whole point is to hear views and debate them. That is how these things ought to happen.

Higher Education (Freedom of Speech) Bill

Baroness Fox of Buckley Excerpts

Committee stage
Monday 14th November 2022 Lords Chamber

[Lord Triesman (Lab)]

My Lords, it is a pleasure to follow the noble Lord, Lord Johnson. Like so many other people in the debate, I strongly agree with the comments made, from the speech by the noble Lord, Lord Grabiner, onwards. I also do not believe that this clause should remain. I do not believe it will do the job it is supposed to, and it will almost inevitably lead to the chilling effect that the noble Lord, Lord Willetts, and others have described.

My noble friend Lord Blunkett asked why the not entirely fictitious person Kathleen could not pursue an action for unfair dismissal because she was compelled into a position that was intolerable. I believe that there was a time when she would have been advised to do that, would probably have done so, and could have counted on the support of her trade union in pursuing that course of action—I can say this directly, as my interest has been declared any number of times. Of course, she found that she could not count on the support of her trade union. I submit to your Lordships that one of the reasons she could not now count on its support is precisely the reason that my noble friend described. If you go back seven, eight, certainly 10 years, the battle that would have taken place in that union to make sure that someone’s employment rights had been sustained without having to resort to any other regulator or court would have been absolute. It would have been the determined position of that union. Some may say that if that would no longer happen, maybe we need something else.

I submit that the “something else” we need is certainly not Clause 4 and this tort. There are those who might say that they are not so concerned about the chilling effect because they do not believe that enough of these things will happen. I say to your Lordships’ Committee that if it wanted to hand-pick a group of its fellow citizens who would argue in the most tortured way about absolutely anything, it should go to one of our universities. There they are: serried ranks of people whose day-by-day enjoyment is to have furious arguments about matters of little consequence. [Interruption.] I have been one for many years.

I will tell the noble Baroness, Lady Smith, that at Cambridge University, after the faculty of economics was redecorated, I was inveigled into taking part in a debate as to the order in which the portraits of its Nobel prize winners should be rehung and whether it should be Marshall or Keynes in the pre-eminent position. I left that debate after eight hours. No one was an inch further down the line of resolving it and, to my knowledge, the portraits have never been hung, because 20 years later no one is any further down the path of resolving it. I hate to say this: the only place where I have seen disputes followed with the same tenacious interest and complete unwillingness to give an inch is in my synagogue, but that is because it largely comprises lawyers. I do not make this point to be frivolous or humorous. The truth is that this is a most vexatious and disputatious group of people. They are employed to have arguments with each other; it reaches into every corner of their lives. If we think that they are unlikely to do so in these circumstances, we mislead ourselves completely.

Some people will be very well backed in pursuing this course of action. I think the noble Lord, Lord Willetts, made the point that some will be at a great disadvantage financially. The student unions that we are talking about are usually run by a small group of young people with no experience whatever of the law. Generally speaking, they are unable to exert any control over all the clubs that form the diaspora of their organisation—the Minister made that point. They will be put in a position that they cannot afford or control, and to which there will be no satisfactory long-term resolution.

All this brings me to say that the points that have been made, including by the noble Lord, Lord Johnson, about having a regulator that can manage these things, and build on knowledge of how to manage them, is a route to a sensible solution. The rest of it—and I apologise if this is thought to be offensive; I do not mean it to be—is completely fanciful, and anybody who has spent more than a few weeks working in a university will know it.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have a huge amount of sympathy with the fears about the chilling effect of Clause 4 and the points that the noble Lord, Lord Willetts, started off making. Basically, I am torn on Clause 4; I do not quite know where to go.

A number of people have discussed the potential of vexatious litigation. I think that is rather cynical. We keep hearing about all these bad-faith players. I am simply worried about litigiousness full stop, even by good-faith players. We know that a dependence on law courts to resolve problems can tangle us up and subsume the matter of fighting for freedom and free speech in legalese, lawyers and so forth, even if done with the best of intentions.

In other words, I do not want us to abandon what we all started off agreeing, which was that this Bill should not compensate for a need for a culture change in relation to arguing for the importance of academic freedom. It should not be seen as a replacement for that. I definitely do not want the law courts to get in the way, because they can kill off any possibility of that culture of the spirit of freedom being drowned out. That is one side of it.

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[Lord Grabiner (CB)]

My Lords, without wishing to repeat points that I made on earlier amendments, I will refer briefly to the amendments put forward by the noble Lords, Lord Willetts and Lord Stevens of Birmingham, Amendments 58 and 59. Both draw attention to key deficiencies in the current drafting of the Bill.

On moving Amendment 58 at the outset of this group, the noble Lord, Lord Willetts, identified a problem with the priorities or procedure to be adopted. All I respectfully say about that is that we need more of a root and branch exercise on the respective powers of regulators, if Clause 4 unhappily ends up in the legislation. This Bill is currently deficient on the relationship between those two mechanisms. Although I agree with the principle identified, I would like to see a more sophisticated response to the problem.

On Amendment 59, the distinction in legislation between “may” and “must” is a lawyer’s old chestnut: “may” is discretionary; “must” is compulsory or mandatory. In order for any body to conclude whether a claim is vexatious, frivolous or a waste of time, it needs some understanding of the facts. I do not think whether it is “may” or “must” matters; it is important that a body has the power to dismiss a case if it is satisfied it is vexatious, frivolous or, for some other reason, unmeritorious.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I have a couple of brief points. Following that helpful contribution on Amendment 59, I want to clarify that complaints are very often dismissed as vexatious, but it is important that we do not accept at face value that things are vexatious because somebody has accused them of so being. That can be a way of closing down the complaints procedure.

I also want to raise a query. I may have misunderstood something in Amendment 58 in the name of the noble Lord, Lord Willetts, but it suggests that

“the OfS cannot intervene until a university’s own procedures … are exhausted.”

There is a difficulty there. Often, academics and students to whom I have spoken feel that their dispute is with those very academic authorities, and that even the complaint within the university can get them targeted as free speech troublemakers. It is not straightforward. In some instances, we are talking about a rather toxic atmosphere. Often, the complaint an academic has is precisely because they have been put on some procedure by the university authorities—they may have been suspended or put forward for disciplinary action—which they feel is unjustified. They then get cleared, but all the testimonies from people who have been in this situation make the point that the process is the punishment these days. As I said earlier, the period in which an academic has been labelled as a user of hate speech, suspended from their job or whatever it is can be really discrediting and damaging to their reputation. It is slightly more complicated than has been presented, and this is one of the problems with the state of universities at present, in relation to free speech.

Higher Education (Freedom of Speech) Bill

Baroness Fox of Buckley Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

Moved by

[Baroness Fox of Buckley]

4: Clause 1, page 2, line 14, at end insert—
“(c) to express opinions about the registered higher education provider, including opinions concerning—(i) the content of any curriculum adopted by the provider, and any decision taken by the provider regarding such content, and(ii) any affiliation between the provider and a third-party organisation that concerns teaching and research at the provider, or questions of public interest,”Member’s explanatory statement
This amendment seeks to ensure that the Bill upholds international standards of academic freedom by protecting academics’ freedom to express freely their opinion about the institution or system in which they work (UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel in 1997 and Russia v Kharlamov).

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the purpose of Amendment 4 in my name is that the law should recognise that one of the key chilling aspects of exercising academic freedom in contemporary times is when higher education institutions—via their HR departments, senior management or brand enhancement initiatives, or when they are advised by PR consultants—sign up to third-party organisations that set targets, codes and charters which, in effect, impose demands, often on the curriculum, research priorities and academic content of academic life, that are determined not by the demands of the discipline or scholarship but by fashionable external ideological diktat. In these instances, academics need to know that the law protects them if they challenge and/or defy such demands. This therefore requires us to recognise that academics can criticise their own institutions. This is about encouraging not gratuitous criticism but a defence of the autonomy of scholarship to define what is taught.

Since we have started deliberating the Bill, many have expressed reservations about this legislation as a threat to institutional autonomy by government interference. However, universities cannot be effective self-governing communities if they use institutional management power to silence internal criticism of their governance. Universities putting their own house in order is one thing, but, if they start adhering to external bodies and signing up to bureaucratic, top-down edicts, the academy as a self-governing community of scholars is threatened, as is scholarship itself.

What happens when highly contentious ideology begins to influence teaching and research and when the pressure of consensus and being on the right side makes dissent more difficult than usual? Academics dissenting from some of these ideological interventions, with legitimate concerns about their discipline being interfered in and even about the concept of what a university is for, should know that the law will protect them if they speak up and contribute to the debate.

When I was considering this issue, I recognised from my time in this place that noble Lords like nothing better than an international legal example to bolster their concerns. I have not usually relied on this, but I thought I would provide some international legal precedent. The Strasbourg court has consistently affirmed academic free expression as a fundamental right, and, in around eight Strasbourg cases concerning academic free expression, one principle has been particularly consistent: academics must be free to voice their opinion about their university. The 2016 Kharlamov v Russia case concerned a Russian physics professor who was sued for defamation by his university after criticising its leadership at an all-staff meeting to elect a new academic senate. The Strasbourg court found in his favour, saying:

“The principle of open discussion of issues of professional interest must … be construed as an element of a broader concept of academic autonomy which encompasses the academics’ freedom to express their opinion about the institution or system in which they work.”


All the cases brought to Strasbourg implement the influential 1997 UNESCO Recommendation Concerning the Status of Higher-Education Teaching Personnel, which was the subject of an amendment by the noble Lord, Lord Triesman, in Committee. The recommendation states:

“Higher-education teaching personnel are entitled to … freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies.”


It goes on to make the key point:

“Higher-education teaching personnel should not be forced to instruct against their own best knowledge and conscience”.


I will use a couple of examples to illustrate why I think this is an issue now, rather than just an abstract principle. The examples I will give relate to the popularity of critical race theory on university campuses. I do not want us to focus on what we think about CRT in particular, and I stress that the vast majority of lecturers have no truck with racism, even if they are critical of a particular brand of anti-racism, such as CRT. When higher education institutes sign up to organisations such as Advance HE’s race charter, one of the new issues they face is that they have to adopt a particular and contested view of race. Advance HE states that

“universities are institutionally racist spaces that have had a historic role in producing the knowledge that racism is based on”,

and, therefore, it demands that educational practice be “decolonised”.

In fact, we have seen this happening recently. A diversity drive by the Welsh Government is putting pressure on universities to decolonise courses. The devolved Government want HE providers to achieve a “race equality charter mark”, a score that grades organisations on their diversity and inclusion policies, as part of a plan for an anti-racist Wales. The Higher Education Funding Council for Wales has made £3 million of public money available to help universities pay companies and providers to score them on racial equality, as decided by Advanced HE, which urges a rethink on all subject matters and courses. I am worried that that puts pressure to review curriculums in line with Advanced HE’s decolonisation guidance.

Meanwhile, the Quality Assurance Agency for Higher Education, which advises universities and monitors the quality of courses, now uses CRT recommendations to say that we should decolonise 25 fields of study—noble Lords will have read about this in the newspapers. I was particularly interested in psychology. Apparently, psychology courses are

“historically based on research and theory from homogenous white, educated, industrialised, rich and democratic countries and do not represent diverse voices and contributions to the discipline.”

Some people I know who work in psychology and who argued against this were promptly recommended to go on an unconscious bias training scheme—so my concern is that there are consequences.

When the University of Oxford’s Faculty of Music decolonised its curriculum in response to student pressure, the university itself sought to forbid criticism of the new curriculum. With this law, we have to ensure that academics are free to speak up in this ideological hothouse atmosphere to say that they disagree according to their own expertise and conscience; for example, if they want to say that decolonisation is misguided and malicious.

I will give one more example, which is about the Architects Registration Board, a statutory body that is mandated by the Government to respond to legal and regulatory changes for architects to become architects. It is perfectly right that it wanted to change the curriculum to fit in with fire safety regulation and building regulation that has been passed here. However, the Architects Registration Board got rather carried away with itself and decided that it would use this opportunity to tell all architecture departments that any undergraduate or postgraduate degree or professional diploma must, for example, show:

“The importance of advocating for sustainable or regenerative design solutions … The relationship between social sustainability, social justice and environmental sustainability … How to design … to integrate and enhance natural habitats which encourage biodiversity”,


and so on. The point I am making is that you cannot become an architect now unless you sign up to that, so architects who are trying to assert their academic freedom come up against these third-party bodies which say that this is the only way that students will be allowed to graduate.

With Amendment 4, I simply want the Bill to recognise that there are new threats to academic freedom—quiet and silent threats, as it were—when it comes to academics being able to say that they disagree or agree with values that are imposed on them by institutions trying to make their name as doing the right thing. However well intentioned, I am afraid that it is a real threat to freedom. I therefore beg to move my amendment.

[Lord Wallace of Saltaire (LD)]

In speaking to my Amendment 5, I shall comment briefly on the previous speech. In all my experience of universities, the problem has usually been getting academics to stop disagreeing with each other, rather than their agreeing with each other and being scared to differ. I do not recognise the picture the noble Baroness has painted. In the universities I keep in touch with, and certainly in the case of the London School of Economics, it has been rare for any department—except the economics department—to have a clear consensus that we were not allowed to dissent from. In that case, the consensus was not a left-wing one, and I am afraid it probably still is not.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, as we have heard, the amendments in this group relate to the important issue of academic freedom. I turn first to Amendment 4, tabled by the noble Baroness, Lady Fox of Buckley, which seeks to amend the definition of academic freedom set out in new Section A1 to make it explicit that academics can voice opinions about the institutions where they work, without fear of adverse consequences.

In responding to a similar amendment tabled in Committee by my noble friend Lord Strathcarron, to which the noble Baroness also put her name, I clarified, as the noble Lord, Lord Collins, kindly mentioned, that the definition of academic freedom as currently drafted already covers the questioning and testing of received wisdom, and the putting forward of new ideas and controversial or unpopular opinions. This speech is not limited to particular subjects, so it would include speech concerning the institute at which an academic works. The Bill will therefore already protect the freedom of academics to put forward opinions about the curriculum content adopted by their provider or third-party organisations with which the provider is affiliated.

As the noble Baroness highlighted, there is a reference in the explanatory statement to the UNESCO recommendation. It may be helpful for me to put on record that the Bill as drafted protects academics in a number of the ways listed in that recommendation. Specifically, it protects the rights to freedom of teaching and discussion; freedom in carrying out research, and disseminating and publishing the results thereof; freedom to express freely their opinion about the institution or system in which they work, as I have already said; and freedom from institutional censorship. However, the Bill does not cover conduct which is not speech, such as the act of affiliating with or joining an organisation.

The noble Baroness also referred to the 2015 case of Kharlamov v Russia, and I can confirm the essential features of the case that she set out. Mr Kharlamov was a physics professor who said during a conference that he was unhappy with the nominations process for candidates to the academic senate. The university sued him for defamation. The European Court of Human Rights in due course found in his favour on the basis that the Russian courts failed to fairly balance the relevant interests and establish a pressing social need for protecting the university’s reputation over the claimant’s freedom of expression. I hope that, in the light of what I have said, noble Lords are reassured that this amendment is not in fact needed.

Amendment 5 tabled by the noble Lord, Lord Wallace of Saltaire, seeks to probe the workability, as he put it, of new Section A1(7)(b) in Clause 1. Taken at face value, it would amend the definition of academic freedom so that it would no longer specify that an academic should not be put at risk of a reduced likelihood of their securing promotion or different jobs at the provider. I realise that it is a probe. It is correct that this provision is not included in the existing legislative definition of academic freedom in the Higher Education and Research Act 2017 and the Education Reform Act 1988. However, we want to be clear in the Bill that academic staff should be protected in as expansive a way as possible—so not only from losing their job or privileges, but from being less likely to secure promotion or a different job at the provider. If we do not specify that these are also covered, there may be only partial protection. A person might not be fired but might be held back in their career, by not being promoted or given another role at the provider because of something they have said.

As I mentioned, the noble Lord wants to know how this provision will work in practice. An academic will of course need some evidence to support a complaint that they have been wrongly held back because of their views. They may have been told by a colleague the reason why they have not been promoted. There may be notes from an interview that suggest why this is the case. There may be an email which makes this clear. In the face of such evidence, the question will then be whether the provider has failed to comply with its duties under the Bill. I note the noble Lord’s point about the OfS guidance and I will ensure that the OfS also does so. This is the way that evidence in employment law is often presented. It is not new, nor is the concept of protection from not being promoted, since that can be a matter leading to constructive dismissal, which has been a feature of employment law for some time.

I hope that this explanation reassures the noble Lord that this is an important aspect of academic freedom in the context of freedom of speech, and that he agrees that the provision will protect academic staff to the fullest extent.

[Baroness Fox of Buckley (Non-Afl)]

I really appreciated the comments of noble Lords in this short debate. I want to stress a couple of things. This is not about the rights and wrongs of any particular examples I gave; it is perfectly legitimate if people want to support decolonisation or critical race theory, for example, but the point is that it is not imposed. I am also concerned about an ideological conformity that stifles the sort of professional exchanges that the noble Lord, Lord Wallace of Saltaire, was advocating.

I was bemused when the noble Lord suggested that I was almost stuck in some social science nightmare. As the noble Lord, Lord Patten, pointed out, it is precisely the fact that this has now been extended into the hard sciences that may wake up even the noble Lord, Lord Saltaire, to the problems, as perhaps he should look quite closely at the decolonisation of physics, computing or mathematics. The noble Lord, Lord Patten, was right when he said, “Why does everybody not just leave the QAA?” In many instances during the discussions in this House, people talk as though we all run colleges. The problem is, if you are an academic in a college where the college vice-chancellor or principal does not resign from the QAA but rather likes it or cites it, what do they do? I hope everybody tears up their QAA membership because of this, but what if they do not?

The noble Lord, Lord Hunt of Kings Heath, really explained what is at stake here. I was avoiding mentioning Stonewall but, in a way, that is what got me interested in this very thing. It has become compelled speech for individual academics who are told that because of the institutional values that the university has signed up to—for example, around the compulsory use of pronouns and/or a particular attitude to biological sex versus trans identity rights, and so on—if you do not agree, you are open to being accused of bigotry and sent on mandated courses. I was not joking; individual members who criticised the music decolonisation were indeed put under huge pressure by people at the university to go along with this. I said “the university” but I do not always understand the institutions and it is fair enough if the noble Baroness, Lady Royall, wants to correct me.

I will finish with this point. I mentioned the Architects Registration Board. We are in a situation whereby a statutory body that the Government are involved in says that all architecture academics must teach all levels of architecture the realities of the ecological crisis. That is a national curriculum by the back door. It is a difficulty that has to be recognised. I want to take the reassurance of the Minister, who said, “Don’t worry, it’s all taken care of”, but, as the noble Lord, Lord Moylan, explained, references to and uses of these international examples can only strengthen the message, with which the Minister seems to agree, about the legal obligations on university management not to allow these kinds of things to get in the way of academic freedoms. It would be a great reassurance to individual academics to know that this is what the Bill wants to do and to see it spell it out. What harm could it do?

Although I will withdraw my amendment at this point, I do not want the Minister to become complacent. This is a really big, serious contemporary issue that must be taken on board by the Government—indeed, whoever is in government.

Amendment 4 withdrawn.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

My Lords, like the noble Lord, Lord Strathcarron, I have put my name to Amendment 21 in the name of the noble Lord, Lord Moylan.

Earlier, the noble Lord, Lord Wallace of Saltaire, suggested that the front page of the Telegraph, complaining about the Government backing down, was simply complaining about mere amendments to the Bill. My concern, though, is that the government amendments are in danger of gutting the Bill. I thought that the Bill’s hope was to allow a shift in the balance of power in higher education institutions away from censoriousness and towards open-minded, tolerant free speech. However, it seems to me that so much turns on enforcement because one’s rights are only as effective as the remedies available when they are violated.

Clause 4, as was, underpinned the duties designed to protect academic freedom through allowing a person to bring civil proceedings against a university or college in respect of a breach of those duties. That would mean hitting universities where it hurts: their pockets. An institution found guilty of violating academic freedom would have to fork out cash to an individual whose rights were infringed. As one academic—Julius Grower, an associate professor of law at the University of Oxford —points out,

“the threat of this alone should be enough to encourage university and college leaders to promote academic freedom.”

Let us see what we are left with following the Government’s new amendments; it is all a matter of national-level administrative procedures, where a person may now bring private proceedings only if they have previously

“brought a complaint relating to the same subject-matter … under a relevant complaints scheme”—

that is, via the Office for Students.

It is with relying on such complaints schemes that I have a problem. Anyone familiar with these schemes will know that they can be sclerotic and bureaucratic and can take months, sometimes years. What is more, they are vulnerable to political interference. A political appointee will, after all, oversee the complaints procedure of the Office for Students, so a beleaguered academic whose freedom has been violated will have to wait and wait before being able to bring a meaningful claim against the university. The amendment in the name of the noble Lord, Lord Moylan, would avoid the threat of overly litigious responses, which has been mentioned, and give us a way out. No one is claiming that these remedies will suffice to keep campus cancel culture at bay, but it is important that they will give university authorities pause while encouraging intimidated staff and students to have the confidence to voice their dissenting views.

Most of the push-back against Clause 4 has been from university vice-chancellors and those who run colleges. I absolutely agree with the points made by the noble Lord, Lord Moore, on this issue. They are a powerful, privileged lobby group of people with an interest in this. I appreciate that, if you run a college, it is your worst nightmare to have a civil tort aimed at you. I understand that. However, it is precisely those who run universities who need to feel that the pressure of this legislation is more than words because, despite all the focus on ideological trouble-makers and mischief-makers that we have heard from noble Lords today, they are presented as the villains just waiting to pounce into the civil courts and throw litigation around. This is an incredible example of straw-manning.

The very driver of the Bill is that there are real-life, concrete trouble-makers, here and now, in universities, who are targeting closing down free speech and declaring that certain views are verboten. They are not imagined trouble-makers; this is really happening now. Yet the imagined villains that have been described are those who are somehow waiting to use this clause only to make money. The truth is that, despite what the noble Lord, Lord Grabiner, suggests, vice-chancellors are not, as yet, queuing up to invite JK Rowling to speak at their universities. The suggestion that she can speak is good. Invite her, all of you—why not? A challenge.

The villains of this piece are often posed as generation snowflake, or social justice warriors who are young. Goodness knows, I spend huge amounts of my time when I am not here going around talking to students at universities and to sixth-formers. Generation snowflake does exist—and wow, do they heckle; I know all about that. But I actually do not think that they are the problem. Often the problem is university senior management, which either spinelessly gives in to the loud demands of a minority of students or leads the charge with ideological silencing policies that are adding to a censorious climate. I talked about this in my earlier speech.

The University of Sussex has been named and shamed so often in this House in relation to Professor Kathleen Stock that I have got to the point where I am feeling sorry for it. The university’s vice-chancellor is not some outlier; he is one of many. We just happen to know about Kathleen Stock because she went public. This is not some imaginary culture war. These are university managers who are hanging out to dry their own professors, academics and often students.

The noble Lord, Lord Blunkett, mentioned Professor Jo Phoenix. I have heard a variety of interviews with Professor Phoenix and have met her on many an occasion; she is battling away in an employment tribunal. It is true that it is difficult to sort out how she can get redress for her reputation having been traduced. She is taking action against the Open University and the way she was treated by the University of Essex. She said that she was shocked but not surprised that the Government had folded on Clause 4, and felt that she had been abandoned yet once more. There are many people like Jo Phoenix who are fighting on and on. Look, for example, at the files kept by the Free Speech Union, of which I am an advisory member. People think that my membership must mean something, and it does: it means I am committed to free speech. In those files there are hundreds of examples of students and academics who have been suspended by university authorities and gone through disciplinary procedures for mis-speaking and saying the wrong thing.

For me, I wanted this law to frighten university authorities —a little bit. I thought that the amendment of the noble Lord, Lord Moylan, had done a huge amount to ensure that the overchilling impact—which the noble Lord, Lord Willetts, talked about—of litigiousness everywhere could be kept at bay, while also ensuring that that tort exists. It will not solve all the problems; there is a much bigger cultural problem in relation to free speech in society. Those opposing Clause 4 are too often not loud enough to fight that culture either. They tell us that they do not need the Bill and that they do not need this clause, and that everyone here is a free speech warrior—I wish. We need this clause, and we need you all to become free speech warriors as well.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, after a lifetime in the law, I was thrilled beyond all else to hear what my noble friend Lord Moore said about the merits of the courts as he lauded the courts, independent justice and so forth. However, I profoundly disagreed with what he said in this debate, because one other thing I have learned over a lifetime in the law—actually it seems a good deal longer than a lifetime—is that any legal proceeding has real downsides to it.

Cost is the first and obvious one: all the problems outlined today about that are true in spades. Secondly, there is the delay in getting to the hearing of the action on the statutory tort, and the subsequent delay between the hearing and the result, with the uncertainty that these delays inevitably carry as to the exact position in law—assuming that there is any law in the case and that it is not just asking for a fresh, factual decision. There has been talk of delay under the statutory regulatory processes. This statutory tort has no special time limit: you can bring it for six years. And why would it end with a first-instance decision? It might wind up in the Supreme Court. Is that what you want?

The third downside during the whole process is the hassle and worry. It is a nightmare for the litigant who is dragged into the process. Therefore, unless there are the most compelling reasons, I say that it should be avoided at all possible costs.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is with pleasure that I support the noble Lord, Lord Sikka, in his Amendment 23. Noble Lords will note that, as has been the case with quite a number of amendments to the Bill, there is certainly a broad political range of support for this one. I think that is a demonstration of the fact that what we are looking at here is an issue that is recognised right across the political spectrum as a matter of grave concern. As the noble Lord, Lord Moylan, just said—I agree with him—it really was not adequately addressed by either Front Bench in Committee. This is my first contribution on Report, so I should declare that I now have the support of my second excellent intern from King’s College London.

The noble Lord, Lord Sikka, set out in Committee, and tonight, a range of areas where this is likely to be an issue: defence, gambling, tobacco and medicine. I would add to that agrochemicals and plastics. Of course, we should not forget the issue of research into government policies, which is so obviously a crucial matter of public interest. The international case study—the most famous or infamous case—is that of Mincome, the Manitoba basic income experiment, which was launched in 1974 under a broadly progressive Canadian state Government and shut down in 1979 under a new conservative Administration. The data from that big, significant trial disappeared into the Winnipeg regional office of Canada’s national library and archives. It was the initiative of one researcher, decades later, to dig out 1,800 dusty boxes packed with tables, surveys and assessment forms, and to digitise the lot. This revealed the positive impact that basic income had had. It was a really significant trial, but that knowledge was denied to the people of Canada, who had funded it, and to the world for decades afterwards.

The House may be pleased to hear that I will not test your Lordships’ patience by telling my own academic tale of woe about research into abomasal bloat in goat kids many decades ago. Suffice it to say that I am well aware of the often pernicious impact of commercial interests on academic research.

As the noble Lord, Lord Sikka, just outlined, in some ways he has watered down the amendment presented in Committee. I would definitely prefer this amendment without proposed new subsection (3)(b). A great deal of the research we are covering is conducted in public institutions by academics; it may be funded by a private interest or the Government, but its main support comes from public funds. Any research for which that is the case should be fully open and available to all. None the less, adding this amendment to the Bill would be a significant improvement.

The Green position overall remains that the Bill is unnecessary and more gesture politics than serious law. But if we are going to have it, this amendment could be a useful protection for academics seeking to add to the sum of human knowledge—and very often contribute to the public good—when they are in danger of being muzzled by private, commercial or government interests. That, combined with the impact of the casualisation of academia, inadequate pay, job insecurity and government policies seeking to narrow the scope of academic research, particularly research critical of the status quo, presents far greater issues for academic freedom than the alleged issues covered by most of the rest of the Bill.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I thank the noble Lord, Lord Sikka, for tabling this amendment. It is such an important issue and I am glad that he has brought it back.

We all want multiple funders for research—this is not an attempt to argue against the funding of research—but we need to be wary of a tendency towards advocacy research, from any direction. We sometimes assume that this concerns mainly big bad corporates; we need to look carefully at business interests, which have every interest in having their interests represented by the apparently impartial academic sector, but this can also be true of the big charities sector. It is often assumed that their backing of research will always be on the right side, but we should remember that they are also lobbying organisations.

That is why I am so glad that the noble Lord, Lord Sikka, mentions all sectors, including philanthropy. His main point is basing our decisions on transparency. As he rightly says, transparency should go way beyond just listing them, because in that instance you can end up with a situation where people think, “This big corporate has sponsored that, so therefore it must be corrupt research,” but also, “This big charity sponsored this, so it must be good research.” You want to know exactly what influence any funder has on the research. The amendment is particularly important since the phrase “the research shows” is often used as a precursor to “so we don’t need any debate”, because research is treated as a holy grail of truth. We need to make sure that research is reliable.

Finally, there is another threat to the impartiality of research: the ideological capture of research organisations, sometimes associated with the Government. I mentioned in Committee that UKRI, a non-political organisation to distribute government largesse which is the largest funder of research that we associate with the Government, boasts in its new equality, diversity and inclusion strategy that it has been inspired by political advocacy groups and grass-roots movements. It advocates that UKRI-supported research is “delivered in inclusive ways”, “uses levers” to make change, and so on. That calls into question impartiality in deciding the distribution of public research money.

Whatever the noble Lord, Lord Sikka, decides to do with this amendment, I hope that the Government and the Minister will take into account that this area cannot be neglected if the Bill is to be successful in protecting academic freedom.

[Lord Wallace of Saltaire (LD)]

My Lords, I cannot agree with the noble Baroness that ideological capture takes place in as quite as many places as she has suggested over the course of today’s debate. Of course, “ideological capture” is itself an ideological term. I think I know enough about UKRI to know that ideological disagreement and disagreement about evidence and priorities will continue to plague it, as all such organisations are likely to be plagued. I am sympathetic to this amendment, although I suspect that what it seeks to achieve is best provided by codes of practice and guidance.

I have had some experience in my career of having difficulty with getting research that I have done published. The first and hardest battle I had was with the Board of Trade, which had commissioned from Chatham House a study of the principles of trade policy. The economists who wrote it for us actually talked to a number of trade policy people and therefore produced something that was not entirely in line with the conventional wisdom of the economics profession. The economists at the Board of Trade therefore wanted to prevent us publishing it. We fought hard and they eventually gave in.

A more recent example was when I was asked by a think tank to contribute to a group of essays on the experience of outsourcing in the public services. I wrote something which was quite critical of outsourcing. I should have looked at its website, annual report and list of funders before I accepted the job. When I discovered that the largest outsourcing firms were among its largest funders, I realised why it had some hesitation about publishing what I had written. Again, after a small number of editorial changes, it finally accepted it.

I compliment that think tank for making as transparent as it did who its funders were. One of the briefing papers we have had for the Bill has pointed out the paradox that Policy Exchange, the fons et origo of much of the Bill, demands that student unions and others should be much more transparent about their funding but is itself entirely opaque about its funding. When I read the policy papers which led to the Bill, I was struck by the number of footnotes to American sources—much more than to any other international comparison. I wondered how much funding from various right-wing foundations in the United States had come into Policy Exchange. I do not know—perhaps there was none—but it should be a great deal more transparent about its funding. During the passage of the National Security Bill, I intend to push for more transparency from lobbying charities of that sort, to increase our sense of open debate.

I support the principles of this amendment, but I am not sure that we need to incorporate it in the Bill. I am sure that the Minister, in the spirit in which he has taken the whole Bill, will wish to make sure that the arguments are taken into account and that the principle of open research and publication is accepted and pursued, and not blocked by either civil servants and Ministers in government, or those outside government who commissioned the research.

[Baroness Royall of Blaisdon (Lab)]

My Lords, the Faculty of Music at Oxford University does excellent research. Earlier on, the noble Baroness, Lady Fox, said:

“When the University of Oxford’s Faculty of Music decolonised its curriculum in response to student pressure, the university itself sought to forbid criticism of the new curriculum.”


I have checked with the head of humanities at Oxford University, Professor Dan Grimley. There were indeed some articles in the Daily Telegraph and the Daily Mail suggesting that that might have been the case, but I have it from the professor—from the horse’s mouth, as it were—that the music curriculum at Oxford has not been decolonised and there has been absolutely no attempt to stifle debate.

[Baroness Fox of Buckley (Non-Afl)]

Briefly, on the horse’s mouth, I did not get my information from the Telegraph; I got it from music academics at Oxford University.

Higher Education (Freedom of Speech) Bill

Baroness Fox of Buckley Excerpts

3rd reading
Tuesday 13th December 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, while I hope the Commons will look again and restore some version of Clause 4 and material remedies for victims of cancel culture on campus, I am still really glad that we have passed the Bill. I think our deliberations have been worth while and even now are having an impact, so I thank all involved.

A highlight for me was when the noble Lord, Lord Collins of Highbury, made his “confession” last week that he had originally thought the Bill “not necessary”, but

“during the process of Committee and the dialogue and discussions … I was persuaded that there is an issue to address.”—[Official Report, 7/12/22; col. 222.]

That is a win, in my book. Credit, then, to those who have spoken so articulately on threats to academic freedom, but also to those who have been open-minded and listened. Does that not remind us of the gains of hearing all sides of a debate, the importance of free speech and why it is so valuable?

In another instance, I have a confession. The noble Baroness, Lady Royall of Blaisdon, was keen to correct any impression I had given that the University of Oxford was creating a hostile environment to academics who might oppose moves to decolonise classical music. I apologise if I was too sweeping, but I am in touch with music scholars who are extremely worried about the dogmatic atmosphere surrounding the classical music canon, disparagingly dubbed

“white European music from the slave period”.

They claim that the debate on the topic is toxic and mired in accusations of racism, so I enthusiastically welcome the University of Oxford’s insistence that this is just not true. Perhaps this shows that university authorities can be sensitised to the reputational damage of not defending academic freedom or their own academic staff’s reputation if they disagree with critical theory orthodoxies. That is a shift away from worrying only about the reputational damage of being mislabelled as bigots by campus activists, and I think the Bill has helped.

A final positive note: I was shocked last week when the UCU, the trade union of Edinburgh University, shamefully demanded that the university cancel the screening of “Adult Human Female” organised by their own colleagues, Edinburgh Academics for Academic Freedom and—not a good example of collegiate atmosphere. I was nervous that Edinburgh University would succumb. After all, it had only recently given into pressure to cancel the titan of Scottish Enlightenment philosophy, David Hume. But no, the university stood firm. The documentary will be shown at the university’s theatre tomorrow night, despite transphobic accusations—

[Baroness Jones of Moulsecoomb (GP)]

My Lords, is this normal?

[Baroness Fox of Buckley (Non-Afl)]

I do not know. I apologise; I am trying to be gracious.

Perhaps the debate we have had has already given authorities a bit more backbone, and therefore I congratulate and thank everyone concerned for allowing a freer spirit and discussion around academic freedom to take place, at least outside this place.

[Baroness Bennett of Manor Castle (GP)]

My Lords, in the interests of balance I will speak very briefly. It is important to say that there is not conviction in all parts of your Lordships’ House that the Bill is, in its current form, in any way necessary. Attempts to address some of the attacks on freedom of speech—including the influence of commercial sponsors and funders in universities, the impacts of casualisation, and low pay and insecurity for academics—were not allowed into the Bill, so not everyone is convinced that the Bill should go forward.

Higher Education (Freedom of Speech) Bill

Baroness Fox of Buckley Excerpts

Consideration of Commons amendments
Tuesday 21st March 2023 Lords Chamber

[Lord Grabiner (CB)]

My Lords, I confess to be rather miffed by the Government’s acceptance of the amendment of the noble Lord, Lord Willetts, because it deprives me of the ability to make the fire and brimstone remarks that I had planned to make. However, I certainly welcome the Government’s reaction to the excellent amendments of the noble Lord, Lord Willetts, and can as a result be quite brief.

On Clause 4, we have really come full circle and are back where we started. As has been pointed out, in our debates Clause 4 was subjected to many serious criticisms by noble Lords across the House, and I will not repeat them. In the face of those criticisms, at Report in this House the Government accepted a clarifying amendment from the noble and learned Lord, Lord Etherton, which incorporated a reference to damages in Clause 4. In a further attempt to meet these criticisms, the Government brought forward their own amendment, as the Minister has pointed out, which gave priority to the regulatory regime and deferred the ability of a private claimant to deploy Clause 4, pending those regulatory procedures being exhausted.

I respectfully urge your Lordships to support the amendments put forward by the noble Lord, Lord Willetts. As to those amendments, the loss point would clarify and emphasise the need for proof of damage as a condition for making a Clause 4 claim. It would deter some frivolous claims, and to that extent would be a valuable amendment.

The priority point in the amendment of the noble Lord, Lord Willetts, is perhaps rather more important. The OfS will have extensive regulatory powers for dealing with an offending student union. Clause 7 would amend the Higher Education and Research Act 2017, whereby the OfS would be obliged to monitor student unions’ performance of their new duties. Importantly, the OfS would also be empowered to impose a financial penalty on a student union and seek an injunction in court. Common sense suggests that the Bill would be significantly improved if priority were given to the regulator and claimants were not able to invoke the private law cause of action until the regulatory function had been performed and completed. This was the Government’s view just a few weeks ago, and I am absolutely delighted that it still is their view—at least in this House.

If I may, I want to briefly draw attention to the email from Ministers which arrived while we were in the Chamber but before this debate began. I will reference the end of the sixth paragraph, which is a point to which the noble Lord adverted when he opened this debate just a few minutes ago. The letter says: “Those affected by the Bill are at the forefront of our minds and it is only right that we reflect that the Government may wish to explore further opportunities to achieve consensus when it returns to the Commons”. The only point I want to make about that is this. The implication of what is said there, and of what the Minister said at the Dispatch Box, is that there may be amendments in the other place that will take away the amendment that I hope we are now going to support, possibly without even a Division. My concern is this: I believe that that would not be a sensible thing for the other place to do.

I would urge one point: if there are felt concerns in the other place that are not satisfied by these amendments, a more appropriate route to be undertaken would be directed towards the regulators, rather than to diminish the quality of the amendment that I hope we are about to make. The regulators are very powerful—they have strong powers in the statute and in this Bill. In my view, the correct party to be concerned with in dealing with the kinds of concerns that trouble everybody in the story, and the proper starting position, is the regulator. That is what the regulator is there for. It would not be right, in my view, to undermine the quality of the amendments that have been put forward in respect of this provision without first facing the possibility that the regulator ought actually, if I may be blunt about it, to pull its finger out.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I was all ready to welcome the restoration of the original Lords amendment to this Bill by the noble Earl, Lord Howe. Previously, I was despondent that we had passed legislation with no teeth, which was potentially a lame duck law, so I was delighted with the reinstated, stronger statutory tort in the Bill that would mean staff and students would have a robust backstop that allowed the ability to sue in the civil courts for breach of their speech rights. In explaining the change, the Minister said he has spoken to many noble Lords. But I am rather taken with the words of the Under-Secretary of State for Children, Claire Coutinho, who noted that she had spoken to many leading academics and that they shared her belief that the tort was necessary to secure cultural change on campus, and that that is why she had introduced the amendment I was prepared to welcome. I can ask only what on earth has changed, other than that the Minister has spoken to noble Lords rather than to leading academics or students.

It is disappointing that we are now being asked to accept a fudge, in the form of the amendment from the noble Lord, Lord Willetts. I fear it will mean that the new, enhanced free speech duties will be viewed as more box-ticking by university managers and student union bureaucrats.

Perhaps I can share my own recent lived experience—to use the fashionable jargon—of being cancelled. I hope at least my remarks will be heard by those in the other, elected place when they consider this debate. Last year, I was delighted to be invited by the University of London’s Royal Holloway debating society to give a talk this February. It was a lovely invitation, from a student called Ollie, who wrote: “We would absolutely love for you to speak to the society about your interesting career, and to talk about the Academy of Ideas and the House of Lords to our keen crop of debaters.” Never one to miss a chance to meet and talk to a keen crop of debaters, I set a date firmly in my diary and I reorganised a number of clashes.

Unbeknown to me—though this has become routine these days for student societies—behind the scenes the debating society had to go through onerous and bureaucratic checks imposed by the student union on whether I would be given permission to speak. Student unions these days have created a veritable cottage industry in safeguarding checks, risk assessments, et cetera. It was a complete pain for the students and time-consuming, and with an undoubted chilling effect on inviting outside speakers. That is what this Bill set out to address, was it not?

Eventually, I was given a clean bill of health by the student union. Apparently, there was no evidence that I was a hatemonger or a threat. However, just a week before I was due to speak, the debating society cancelled. What happened? Once the event was advertised, the same student union bureaucrats claimed that six societies had raised concerns about me coming on to campus, the evidence for which was that I retweeted a clip from a comic on Netflix. Maia Jarvis, the president of the student union, wrote a menacing message to the debating society, stating:

“I hope that you can see that Claire Fox retweets and praises a video of Ricky Gervais being overtly transphobic. I wonder if you have thought about the impact of bringing a person who is an advocate for hate towards trans people and publicly ridicules them. And whether you are comfortable with the fact that that is the message your society is sending out to RHUL trans students.”

--- Later in debate ---

[Lord Triesman (Lab)]

My Lords, I am not sure that I am going to be offensive; I now feel that my presentation is lacking as a result. Let me at once declare an interest. I was the general secretary of the Association of University Teachers in times when the issue of—and necessity for—freedom of speech in universities was regarded as one of their paramount responsibilities.

I readily agree with the noble Lord, Lord Willetts, who said that that is fundamental to almost all of us who have been concerned with higher education. I appreciate what the Minister has said; this has been a very solid development. I also support the amendment the noble Lord, Lord Willetts, introduced, for much the same reasons as the noble Lord, Lord Grabiner.

I feel a sense of disappointment and sadness on behalf of the noble Baroness, Lady Fox. It is obviously never pleasant to be invited somewhere and then told you are not going to speak, but I urge her to get over it. The truth is that when you go into academic climates and start talking to academics, you are going to find—rather like with lawyers—that a large number will agree with you and a large number will disagree. They will tell you that with all the spitefulness, generosity and so on while they do it.

I have come across a lot of academics who want to make sure that the world of universities does not automatically become subsumed in a world in which people pursue litigation against one another, rather than try to resolve things through more sensible routes. It was bound to end in a reasonable compromise, and I think the Minister put that very fairly and very well.

In welcoming these developments, the academics who have bothered to get in touch with me have told me that the kind of change we are contemplating today is the kind they would find easiest to live with. They are more and more—probably in part because of the debates we have had—sympathetic and attentive to the problems that have been created by cancel culture. I used to cancel my own culture when I was a lecturer, largely by giving very erudite lectures on obscure mathematical problems. Very few people enjoyed them. There is only so much multiple regression you can hear about before you conclude that you should take yourself home because no one is going to be that interested, but it was what I was teaching.

That is why I say to the noble Baroness, Lady Fox, that of course some people will be uncharitable and malevolent, but it is something we can get past with a sensible compromise of the kind we have seen—particularly in the light of the reservations the noble Lord, Lord Grabiner, has about it.

[Baroness Fox of Buckley (Non-Afl)]

To clarify, as I stated earlier—this really is important—I do not have a right to a platform and I do not care if people disagree with me. I do not mind if students invite me and then disinvite me. All I care about is if students are bullied into disinviting me. It is for the students that I made the speech, not for myself. Who cares about my feelings? They are of no relevance.

My point is that many academics and students have looked to this Bill and the amendment. The noble Lord, Lord Triesman, has talked to people who want the compromise. I have talked to people who think it is a fudge. Let Parliament decide—fair enough—but I do not think anyone can claim they have spoken to all the academics, and this is the only answer. I think that this is a cop out.

[Earl Howe (Con)]

My Lords, I just say to the noble Baroness, Lady Fox, that strictly speaking there should not be any interventions at this stage of the Bill.