Higher Education (Freedom of Speech) Bill

Baroness McIntosh of Hudnall Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

[Lord Moylan (Con)]

My Lords, I rise to continue my minute and curious search for means by which the Bill might achieve some noticeable change. I notice I am grouped with an amendment from my noble friend Lord Willetts which appears to be there to ensure no such change is actually achieved in practice or cultural outcomes, so I think we are well matched. I will continue on this hunt for the prospect of change. In this case, I am not suggesting we amend any other legislation or duty, so noble Lords resistant to change will have to find different arguments to respond to me.

This amendment would amend not existing legislation but the text of the Bill. In new Section A3, the

“Duty to promote the importance of freedom of speech and academic freedom”


is defined in a manner which is pleasing to the Government. It simply says that it is there to promote

“freedom of speech within the law, and … academic freedom for academic staff of registered higher education providers … in the provision of higher education”.

This is insufficiently clear on which duty is being imposed on universities that does not exist already.

Amendment 31, which I have put forward, specifies what we expect universities to do as a result of the passage of the Bill into law. I will not read out everything it says, but it is there to

“eliminate unlawful interference with freedom of speech within the law and academic freedom … promote and prioritise the particular importance of freedom of speech … promote and prioritise the academic freedom of academic staff … and … foster a culture of free thought and”

open markets—sorry, “open-mindedness”. There is nothing wrong with promoting open markets either, but as it happens that is not the wording of this amendment. I am attempting to make clear what it is that we expect universities to do as a result of this duty to promote academic freedom, which the Government agree should exist but have defined in a manner which leaves the whole thing completely open.

There is an acid test to apply to this, which is the case of Dr Kathleen Stock. I do not know her, and I know nothing of her case that I have not read in public sources, so I am not making a special plea on her behalf. I am simply taking the story as emblematic. In her case, the university—I think it is fair to say—did not do some of the things it should have done to protect her and her rights. That could easily still be the case, especially with the amount of time that universities will have to spend on the astonishingly complex calibration of duties and obligations, which are apparently going to remain wholly unamended by this Bill. It has let her down.

The acid test is whether this clause would have protected a reputable academic from losing her post after expressing views which were objected to on essentially ideological grounds. My view is that, as drafted, it would not. The amendment I am moving would and I hope the Government will be able to explain why it should not be adopted when what they are doing is clearly not enough. I beg to move.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I should notify the Committee that, if this amendment is agreed to, I will be unable to call Amendments 32 or 33 owing to pre-emption.

[Lord Willetts (Con)]

My Lords, perhaps this is the moment at which I might intervene on Amendments 33 and Amendments 54 to 56, which are in my name and that of the noble Lord, Lord Stevens. I declare my interests as a visiting professor at King’s College London, an honorary fellow of Nuffield College, Oxford, chancellor of the University of Leicester and a member of the board of UKRI.

I am going to rise to the challenge from my noble friend Lord Moylan. My understanding of the purpose of this Bill is to enhance the protection for freedom of speech in universities. That is an admirable objective and I support it. I have some doubts about the practical effects of this Bill, which this Committee is scrutinising, but the objective is the right one.

The evidence is clear—a point made by the noble Baroness, Lady Fox, in the debate on Monday, which I sadly was not able to attend—that, recently, universities have become overpreoccupied by probably a mistaken interpretation of their equality duties and have put insufficient focus on freedom of speech. I personally think that debates such as the one we are having and the shift in attention to this is already beginning to improve things. It is right, therefore, to look at ways in which we might reinforce the provisions of the 1986 Act. This Bill undoubtedly does that, both by a tort provision and a regulatory provision. I personally think that trying to use both of those instruments is overdoing it, but the powers of the regulator, the OfS, on their own are considerable; they will change the balance.

Amendment 33 would make explicit that this protection for freedom of speech sits alongside other duties, such as those in Prevent and in equality legislation—and also, I may add, labour market protections. I was quite interested in the way that the Minister, in his interventions on Monday and earlier today, has focused so much on employment law and labour market protections. One reason why cancel culture will never be able to do quite as much damage to higher education in the UK as it has done in the US is, paradoxically, because of the different framework of labour market and employment protection that we have in this country. It is quite a challenge to those of us historically in favour of deregulating labour markets. This is a context in which employment protection actually works to protect freedom of speech.

In the debate on the previous group of amendments, the Minister put the point very well that there are other duties in other legislation and what this legislation does is to put an obligation on freedom of speech alongside those. In fact, the main purpose of Amendment 33, I can now see, is to put into primary legislation exactly what the Minister has already assured us of: that this obligation on freedom of speech goes alongside other obligations such as the equality duty or Prevent duty.

One can sense from our debate that there are temptations to go in different directions. One temptation is to say that these provisions for freedom of speech must override other legislation, or perhaps—though we have had less of this—be subservient to other legislation. I do not think that it is the intention of the Government that they should either override or be subservient; they are alongside. I suspect that, as the Committee continues, we will find that there are some people who see an opportunity to make this override equality legislation, some people who want it to override Prevent legislation, and a very small group who would like it to override both. I personally think that the wording in this amendment,

“having due regard for all other relevant legal duties”,

is the right way to make it clear that there is an intention for this to be alongside those other duties.

As to the effect that the other duties have, we heard an important intervention earlier that one problem is that there has been a misinterpretation of the equality duty. The problem is less the actual equality legislation and rather a misunderstanding of it. For me, the most illuminating case is the Akua Reindorf report on what happened at the University of Essex, which was shocking. It was made absolutely clear that what happened was based on misunderstandings of provisions in equality legislation, particularly, for example, that the protections are for gender reassignment, not gender identity. Similarly, the Prevent duty is another important framework of legislation, and we need to ensure that it is balanced with freedom of speech.

--- Later in debate ---

[Lord Willetts (Con)]

My Lords, I would like briefly to—

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

I should point out to the noble Lord that if he wishes to speak again on his amendment then I will have to put the amendment and it will be open to further debate. Of course, I do not seek to influence the noble Lord in any way.

[Lord Willetts (Con)]

I will resist. I shall not move the amendment, and I look forward to further exchanges.