Higher Education (Freedom of Speech) Bill

Baroness Shafik Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Baroness Shafik (CB)]

It is a pleasure to follow the noble Baroness, Lady Chakrabarti, who brings a great deal of expertise and insight to this important debate, as indeed have all Members who have contributed. I thank the Minister, first, for the comprehensive introduction to the debate and, secondly, for the constructive and kind way in which he has engaged with me in advance. I have also discussed assurances with the Secretary of State. I draw noble Lords’ attention to my registered interests, specifically my role as director of the London School of Economics and Political Science, which of course will be directly affected by this legislation.

It is absolutely right that the Government want to protect and promote freedom of speech. Indeed, freedom of speech and academic inquiry is central to everything that universities do. That necessitates the full freedom to pursue lines of academic inquiry, even when they may end up in uncomfortable places. At the LSE, our very international community welcomes speakers from across the political, national and ideological spectrum to its campus, as the noble Lord, Lord Wallace, noted. They set out their stalls, respond to challenge and, in the best traditions of university life, educate our students on different points of view and, more importantly, on how to engage with those different points of view with intelligence and respect.

As the noble Baronesses, Lady Thornton, Lady Royall and Lady Garden, noted, the House Library references a report and a survey of 10,000 cases of external speakers, only six of which were cancelled. That is 0.06% of all events surveyed. I am proud to say that, as far as I know, at LSE we have never no-platformed a speaker. That is because we actively manage and promote freedom of speech collectively. It is an interesting question whether you need 23 pages of legislation for a 0.06% problem, particularly given that the higher education sector faces so many other challenges, but here we are.

I turn to the content of the Bill, which proposes a new legal “Duty to promote” under Clauses 1 and 3. This would change the legal balance between the protection of freedom of expression and other statutory duties placed on universities over the years, such as the public sector equality duty and the Prevent duty. Those duties are in potential conflict with this legislation, as noted by the noble Baronesses, Lady Deech and Lady Chakrabarti. I would very much welcome insight from the Minister into how all these duties will coexist successfully and what guidance will be available to universities to avoid being caught in the middle of conflicting legal obligations.

Clause 4 would create an avenue for civil proceedings for anyone who believes that their freedom of speech has been curtailed. Drawn too broadly, this new tort would pave the way for vexatious, time-wasting and expensive litigation, as many Peers have noted. The Bill is very unclear as to the exact circumstances that would allow this tort to be pursued. For example, will there be a threshold of harm? I believe that there should be, similar to the threshold in the Defamation Act the Government passed in 2013. Will the Government confirm that this new tort could be pursued only if the existing university complaints procedures had been exhausted? Again, I believe that this should be written into the legislation, analogous to the protections in the new OfS complaints scheme set out in Clause 8. Better yet, choose just one route for complaints, as the noble Lord, Lord Willetts, suggested. I suggest that the regulatory route would be much simpler than the litigious one.

Clause 10 legislates for the new director for freedom of speech and academic freedom in the Office for Students, which has been much discussed. Of course, I understand that if we pass this legislation the Government will want expertise in the Office for Students to keep an eye on it, but we must be clear: the director must be an expert. I know that the recruitment process for this director has started. It would be reassuring to know that the selection panel is well staffed by those with expertise in the legal issues around free speech and the challenges facing universities, and will choose someone with expertise in both areas.

I turn finally to Clause 9, which sets out the requirement for the reporting of foreign donations to and contracts with UK universities. It is understandable that Ministers want to keep an eye on relationships with foreign powers and organisations, especially where there are issues of national security, but this must be proportional and risk-based. I therefore strongly welcome the Government’s commitment to ensure that there are sensible exemptions to the new reporting regimes, especially where national security risks are low. Although these exemptions will be set out in subsequent guidance, it would be helpful to have on the record the Government’s thinking thus far before the Bill passes. The Government have suggested a reporting threshold of £75,000 for foreign funding, though the equivalent in the United States is $250,000. A sensible equivalent would reduce undue bureaucracy and expensive costs for what are small-scale arrangements, as mentioned by the noble Lord, Lord Johnson. I am also keen to understand what additional resource the Office for Students will have to monitor what will be a significant increase in its workload.

In conclusion, I thank the Government for the constructive way in which they have approached this legislation so far. As the Bill progresses, I hope we can achieve some sensible amendments that will enable the Government’s ambitions to protect free speech while supporting a universities sector that continues to be the envy of the world.