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.