Higher Education (Freedom of Speech) Bill

Baroness Smith of Newnham Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

Moved by

[Baroness Smith of Newnham]

1: Clause 1, page 1, line 10, after “speech” insert “within the law”
Member’s explanatory statement
This amendment seeks to ensure that the definition of freedom of speech in section A1 is identical to that within A3.

[Baroness Smith of Newnham (LD)]

My Lords, I rise to speak to Amendment 1 and other amendments in the name of my noble friend Lord Wallace of Saltaire, with his permission, as he cannot be with us in Committee today.

Quite often in Committee, the first amendment can seem a little trite. Sometimes it inserts “and” or deletes a semi-colon, because the way we have to table amendments is sometimes a little esoteric. On this occasion, the first amendment fits with the wide range of amendments that form this group—namely, in Amendment 1, my noble friend suggests that after “speech” we should insert “within the law”. This goes with a whole set of amendments that, in many ways, are trying to ensure that the variety of issues within this legislation, if it is necessary and has to pass—like my noble friend, I query its necessity—are dealt with. The first amendment seeks to make sure that we are clear about what we are looking at in the concept of freedom of speech. Reaffirming that within the law is clearly important.

My noble friend also tabled a range of amendments to insert or withdraw “beliefs”. He says that they are self-evident but, in particular, he wants the Committee to think about what His Majesty’s Government mean by “beliefs” in the context of this legislation, because the problem that this legislation purports to resolve is about freedom of speech in higher education, but that concept is not always well-defined.

At this point, I take a moment to declare my interests. As outlined in the register, I am an academic employed by the University of Cambridge, a fellow of Robinson College Cambridge and a non-executive director of the Oxford International Education Group, plus I sit on the odd advisory body of other places of higher education. Therefore, I have a professional interest in the Bill, but I also have an interest in ensuring that any legislation that we pass is absolutely clear. One of the biggest problems for many of us, whether in higher education or other parts of public service, is not necessarily whether the legislation exists but how clear it is and how effectively the people subject to it are going to be able to monitor it—is it clear to everybody? One of the best examples of this was the Licensing Act 2003. When it was introduced, it was full of uncertainty, vagueness and lack of clarity. It took many amendments and much work by local authorities to understand what the Government wanted.

It is important that in this legislation we are clear what is meant by “beliefs” and what the Government’s understanding of “beliefs” is. Also, as Amendment 3 in the name of the noble Lord, Lord Collins of Highbury, points out, we need to be clear what we are talking about in the context of freedom of speech in higher education. Although there are no Liberal Democrat signatories, I have no hesitation in putting forward Liberal Democrat support for Amendments 3 and 11, because both amendments are extremely important to bring clarity. I shall not pretend in Committee to channel my noble friend Lord Wallace; I shall simply move the amendment in his name, support those in the name of the noble Lord, Lord Collins of Highbury, and look forward to hearing the debate at this stage. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I shall speak to Amendment 2, which is in my name and that of the noble Lord, Lord Triesman. The amendment seeks to do two things. First, it seeks to explore what the Government mean when they refer to

“freedom of speech within the law”

in new Section A1(2). Secondly, it seeks to avoid a possible inconsistency between the freedom of speech that the Bill seeks to protect and promote and the right to free expression that is protected by Article 10 of the European Convention on Human Rights.

There is a bit of history behind this amendment. I drafted it just after the Bill received its Second Reading in the summer. At that time, the Prime Minister was Boris Johnson, the Secretary of State for Justice was Dominic Raab and the Bill of Rights had just been introduced, which I think it is right to say he particularly favoured. The point that concerned me at that time was two Bills dealing with freedom of expression or the right to freedom of speech proceeding together without any connection between the two. What happened, as we all know, is that there was a change of Prime Minister. When Liz Truss became Prime Minister, Dominic Raab was no longer the Secretary of State for Justice and it was made known that the Bill of Rights was no longer to be proceeded with. However, there has been another change: we have a new Prime Minister, Dominic Raab has come back in again as Secretary of State for Justice and it is possible that the Bill of Rights may be resurrected and create the problem that I was anticipating in the summer. I stress that one of my motivations behind this amendment was to be sure that both bits of legislation, if they are to proceed, are in communication with each other and that, when we use the expressions “freedom of expression” or “freedom of speech”, we are talking about the same thing.

I come back to the point that I mentioned at the beginning: the phrase “within the law” needs some explanation. It seems to assume that the law already tells us what the freedom amounts to. I think that most people—certainly most lawyers—would tend to look to Article 10 of the European Convention on Human Rights as telling us what the freedom amounts to, because it spells it all out and it is suitably qualified for various reasons when you read the second part of Article 10. I should have thought that to build it into this Bill makes good sense. The amendment seeks to explain and give body to the expression “within the law”.

Those are the two reasons: first, to give greater body to the phrase “within the law”, so that everybody understands what it means and to preserve consistency with Article 10, which is part of our law; but also to avoid a possible inconsistency with the Bill of Rights, should it be reintroduced, because it would be unfortunate if that Bill, when it talks about freedom of speech, as it does, should be using a different basis for legislation. I should explain, and I am quoting now, that Clause 4 of the Bill of Rights says:

“When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right.”


It goes on to say:

“In this section ‘the right to freedom of speech’ means the Convention right”.


It then sets that out in full in the way that my amendment does.

My amendment is based on the wording that can be found in Clause 4(2) of the Bill of Rights as it was, and it is the best I can do to bring the two Bills into line. With great respect, I do not think that this amendment does anything to harm this Bill or in any way interfere with the basic principles which the Government are seeking to achieve by promoting this legislation. All I am trying to do is avoid misunderstandings and inconsistencies. With that background, I commend the amendment to the Committee.

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[Baroness Smith of Newnham (LD)]

My Lords, I wish to speak briefly in my own right, as opposed to speaking for my noble friend Lord Wallace, apart from one point about Amendment 1. The point of adding “within the law” is to fit with new Section A3, but that would be subsumed by the amendments in the name of the noble and learned Lord, Lord Hope of Craighead. The idea of defining freedom of speech is highly desirable, and that amendment appears to do the job.

I have some difficulties with Amendment 28, and it would be interesting to understand what the movers of that amendment mean in proposed new subsection (2). The relationships between this legislation and the Equality Act, and this legislation and other pieces of existing legislation, need to be thought about. I have some concerns about what the ramifications of proposed new subsection (2) would be.

[Lord Collins of Highbury (Lab)]

My Lords, this has been a fascinating debate, and one we could continue for some time, because it is about trying to reach a consensus about concepts—I have my name down to Amendments 3, 11 and 30—but it is also about how we talk about free speech in universities and about academic freedom. There has been confusion in the debate about those two things. One of my amendments tries to say that we should not forget academic freedom and how important it is to university life, and asks about the constraints on it, which are not necessarily all the things that we have been talking about. In my experience, academic freedom can be constrained by economic factors and income streams that universities might have. Research can be restrained for those sorts of reasons, and academics who followed a particular route of research have been constrained by those other pressures.

The noble Lord, Lord Mann, is absolutely right. He and I have shared the same experience: political views can be unpopular, and some of the demonstrations that we have faced have been quite violent. The noble Lord, Lord Alton, has sadly left the Room, but we had a debate on Friday on his genocide Bill, as well as a debate on Thursday about Ugandan Asians. I remember standing up and defending the need to protect Ugandan Asians and facing a quite violent reaction from people. It was not limited to the streets; it was in other institutions, even in my own trade union and my own party.

As a lifelong trade unionist—I am not making a Second Reading speech, but talking specifically about my amendments—I have long experience of how politicians want laws to change culture, which is impossible. The most successful progress in industrial relations has been made not by legislation but by consensus, agreement and discussion.

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[Earl Howe (Con)]

I apologise to the Committee. I know that I have been speaking for a long time, but this is the very issue that I was about to come on to next, if my noble friend will allow me.

Amendment 13, which is the amendment that my noble friend was referring to, seeks generally to strengthen the test for what is “reasonably practicable”. It would mean that, in relation to speech of a political, philosophical or academic nature, it would always be reasonably practicable not to interfere; in relation to other speech, it would be reasonably practicable only if taking that step would prejudice the functioning of the provider. I hope that I have paraphrased the issue correctly.

The Government’s position, supported by the OfS, is that we stand for the widest possible definition of free speech—anything within the law—and that, where debate is particularly contentious, it is all the more important that everyone feels able to put forward their views and arguments and be heard, on all sides.

The “reasonably practicable” wording of the main duty means that providers can take account of all their legal duties on a case-by-case basis. But I must be clear that my noble friend’s proposed strengthened test goes too far in not allowing providers to take account of all the relevant circumstances, including their other legal duties—for example, to prevent unlawful discrimination or harassment, or to comply with the Prevent duty so as to stop students and others being drawn into terrorism. There may be occasions where it is not reasonably practicable to secure freedom of speech of a political, philosophical or academic nature, even if that speech is lawful, and we must not impose a test that has so few exceptions.

If I might address the point made by the noble Lord, Lord Triesman, about conspiracy theories, the question of whether espousing a conspiracy theory is lawful depends on what is said. If it is defamatory, it would be unlawful. The point of the Bill is to take a wide approach to freedom of speech as a fundamental principle in a democratic society, but there is nothing in the Bill to encourage baseless or harmful claims, or bad science, on campus, for example.

Amendment 25 seeks to clarify the position regarding balancing the right to freedom of speech with the right to protest. The purpose of the Bill is to protect freedom of speech, but the right to peaceful protest is a fundamental tool of civic expression and will not be curtailed by this Government. Of course, it can itself be an aspect of freedom of speech. If there is a protest against a particular academic because they have said something controversial but lawful, providers will need to decide what reasonably practicable steps they can take to ensure that the academic can speak freely.

The intended effect of the Bill is not to prioritise one right under the ECHR—that is to say, freedom of expression under Article 10—over others, such as the right to protest under Article 11. The requirement to have “particular regard” to the importance of freedom of speech builds on existing provision under Section 43 of the Education (No. 2) Act 1986 and could, in a particular case, prompt a higher education provider to prioritise freedom of speech over another convention right. However, this would remain subject to its assessment of what is reasonably practicable and would need to be lawful.

It is worth noting that a provider’s code of practice under new Section A2 must include the procedures to be followed when organising meetings and activities, as well as the conduct required in connection with them. This will ensure that staff and students are aware of their responsibilities as regards their own conduct.

The noble Lord, Lord Hunt, suggested delaying Royal Assent to allow universities due time. Let me confirm to him now that implementation of the Bill will not be rushed. Various actions need to be taken before the new regime can come into force, including consultation with the sector and the provision of guidance, so providers, colleges and student unions will be fully engaged and able to understand their responsibilities under the Bill.

I turn next to Amendment 30 in the name of my noble friend Lord Sandhurst, which seeks to ensure that codes of practice have a process in place for dealing with meritless claims against staff and students. It is an important point that providers should not have to spend time and resources responding to frivolous or vexatious complaints. However, I should make it clear that the duties in the Bill are imposed on the governing body of registered higher education providers. There cannot be complaints made under the Bill about the freedom of speech duties against staff, members and students of the provider, or visiting speakers, as the amendment suggests. Higher education providers will in any case have their own procedures already in place for handling internal complaints. As for burdens on providers, unnecessary bureaucracy can take up time that could be spent focusing on the academic experience and high-quality teaching, but these measures are absolutely necessary to protect the core value of freedom of speech and we consider that the duties imposed are proportionate and appropriate.

I hope my remarks have provided noble Lords with reassurance about the Bill’s approach regarding the main duties set out in it and that they strike the right balance.

[Baroness Smith of Newnham (LD)]

My Lords, clearly, I have not quite been mandated by my noble friend to accept the noble Earl’s answer, but, given his answer, I shall beg leave to withdraw Amendment 1 and I suspect it will not need to come back on Report. The clarification on the other amendments associated with belief were very helpful, but that might be an area where further amendments are brought on Report. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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Moved by

[Baroness Smith of Newnham]

4: Clause 1, page 1, leave out line 14
Member’s explanatory statement
This amendment is intended to probe the definition of “members” in this paragraph.

[Baroness Smith of Newnham (LD)]

My Lords, again I am moving an amendment on behalf of my noble friend Lord Wallace. It might appear that he has been in a particularly frivolous mode in deleting the odd word. In this case, three of the amendments in the name of my noble friend, Amendments 4, 37 and 57, all suggest that we delete “member”. This is because the concept of “members of the provider” seems somewhat unclear.

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[Earl Howe (Con)]

My Lords, this second group of amendments relates to members and academics, as covered by the Bill, but I will also try to address the questions put to me on related issues.

Amendments 4, 37 and 57 in the name of the noble Lord, Lord Wallace, and spoken to by the noble Baroness, Lady Smith, seek to probe the meaning of the term “members” in the Bill. The term “member” in the sphere of higher education has a specific meaning as a term of art. It includes in particular a member of the governing council of a university and those with certain honorary positions, such as an emeritus professor. Such a person may not be a member of staff of the institution and so needs specific provision in order to be protected under the Bill.

A member does not include a person who simply studies or used to study at the university, though some might use the term in that way. Current students would be covered by the term “students”. It also does not include a recipient of an honorary degree, which is awarded to honour an individual and does not give any academic or professional privilege.

The term “member” is well understood in both legislation and universities. In particular, it is already a category of individuals which is protected under the Education (No. 2) Act 1986, which sets out the current freedom of speech duties.

[Baroness Smith of Newnham (LD)]

It appears, according to Clause 2, that colleges are constituent parts of universities and are therefore brought into this Bill. Given that Oxbridge colleges refer to people as members, would it be possible for the noble Earl to think about further clarification? While I understand the general point that “members” might have a clear definition, it is not clear in the Bill as currently framed.

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It is vital that members, as a group of senior and respected individuals closely involved in university life, should be protected under the Bill so that they are able to talk about academic and other matters without fear of repercussion, just as academic stuff are protected, as I have just outlined.

[Baroness Smith of Newnham (LD)]

I think that, although I shall withdraw this amendment, we are likely to have a form of amendment coming back at Report, unless the Minister manages to pull some sort of rabbit of the hat defining members and other things in a clearer way than is currently in the Bill. But with what, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

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[Lord Grabiner (CB)]

My Lords, on the point we have just been discussing, is this not a very good example of the kind of matter that could be very conveniently addressed in a code of practice? If the position is that some obviously controversial matter or speaker, whatever it may be, is in the first instance being located in an inappropriate place, this is a very good example of how that could be dealt with in a code of practice. We do not actually need primary legislation for this purpose.

[Baroness Smith of Newnham (LD)]

My Lords, I shall speak to yet another amendment from my noble friend Lord Wallace of Saltaire. I was reminded by the comments of the right reverend Prelate that I speak as a Catholic, so I am very glad that academic freedom has actually extended to Catholics: we were eventually emancipated and are now able fully to participate.

Amendment 24, from my noble friend and the noble Baroness, Lady Bennett of Manor Castle, is slightly different from the other amendments in the group. It would omit lines 30 to lines 34 on page 2. Again, it is a probing amendment to do with the costs that might fall on the provider. At present, the Bill says that

“the governing body of a registered higher education provider must secure that, apart from in exceptional circumstances, use of its premises by any individual or body is not on terms that require the individual or body to bear some or all of the costs of security relating to their use of the premises.”

How far are universities or, indeed, student unions expected to cover the cost of security? Do the Government think there is a limit to those costs? How do they view “exceptional circumstances”? Some clarification is needed on the expectations here, because although moving venues might be relatively straightforward and incur but a small cost for the education providers, providing security could prove prohibitive, certainly for student bodies. That then raises the question: if we are trying to enhance academic freedom but are then imposing costs on the providers, is there not a tension there? Have the Government thought this through?

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[Earl Howe (Con)]

I am very grateful to the noble Lord; I will certainly take that point away and make sure that it is noted.

[Baroness Smith of Newnham (LD)]

Following on from the point made by the noble Lord, Lord Grabiner, could the Minister clarify how the Government envisage the duties in the legislation we are debating today and the Prevent duties? There is already a whole set of pieces of paper and so on that organisers of events in higher education institutions are required to fill in. Are we expecting additional work and additional documents, or would the same set of paperwork work for this legislation as well as for Prevent?

[Earl Howe (Con)]

We are coming later on to a group of amendments that could well encompass the noble Baroness’s question about the Prevent duty, but my answer to her now is that the planning of an event involves a number of considerations: the security costs; whether it impacts in any way on the Prevent duty; whether it impacts in any way on the public sector equality duty; and so on and so forth. This is a set of issues relating to an event that might be considered controversial that will need to be looked at altogether in the round. I cannot say whether there will be a separate set of papers, but if I receive advice on that point, I will certainly write to the noble Baroness.

To conclude, we want these provisions to offer a safeguard to groups that might come under serious security pressures, while also giving providers, colleges and student unions the independence that they need. I hope I have reassured noble Lords on these issues and sufficiently addressed the concerns raised.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly, because I think Amendment 14, in the name of the noble Lord, Lord Triesman, gives us a very interesting, powerful and effective way forward. Like the noble Lord, I retain concerns about whether the Bill should be going forward at all, but if it is going to, to use a long-accepted international definition seems to take us somewhat in the right direction.

The stress in that UNESCO document on freedom from institutional censorship brings up some very powerful examples. I thought of some of our universities which have, I am afraid, accepted large sums of money from very dubious state bodies from around the world, where some academics have perhaps found themselves under pressure not to produce research or make comments critical of those authoritarian regimes. I also very much thought of a whole series of papers I have just looked at, all published in 2018, in the International Journal of Risk and Safety in Medicine, the American Journal of Industrial Medicine and the Journal of Public Health Policy, all of which address Monsanto’s influence on academic research and publication around the pesticide glyphosate, and all of which were published by different authors—none of the authors’ names are shared. For example, one paper revealed that Monsanto sponsored the ghost-writing of articles in toxicology journals and interference in the peer review process.

I retain all those concerns, but I think the noble Lord, Lord Triesman, may have found us a very useful potential way forward here.

[Baroness Smith of Newnham (LD)]

My Lords, I think my noble friend Lord Wallace’s amendments here speak directly to some of the points raised by the noble Baroness, Lady Fox. My noble friend’s Amendment 13 states:

“Page 2, line 12, after ‘wisdom’ insert ‘within all fields covered by their professional responsibilities’”.


That could be taken by the noble Baroness, Lady Fox, as a way of narrowing the legislation again. It is really intended, if not quite as probing, to try to understand the Government’s understanding, in this legislation, between academic freedom and freedom of speech for academics. Is it to be only within the confines of their own discipline, or is it to be anything within the academic sphere? The parallels are in other professions, where people might have their own standards, so Amendment 13 is to try to understand—

[Baroness Garden of Frognal (LD)]

Amendment 15.

[Baroness Smith of Newnham (LD)]

Sorry, Amendment 15. This just demonstrates that the profession I need to go to is my optician, which kindly cancelled my appointment.

Amendment 15 is very much to think about to what extent this is about particular academic standards. I suggest that it is in effect probing, although my noble friend does not say that.

The next amendment, which I think we all take as being Amendment 16, is to omit

“and controversial or unpopular opinions”.

This is not necessarily to say that these things should not be there, but in the debate on an earlier group of amendments the Minister pointed out that beliefs and views are not the same and that beliefs are protected under the Equality Act. But then there is the question of where we put unpopular opinions. They are not beliefs. Are they views? Should they be in there? My noble friend’s question here is about whether we should expect academics to put forward views based on evidence. Here the noble Baroness, Lady Fox, has a point, because while we would expect to look for evidence, at some point in the intellectual journey you might be looking for evidence and not yet have found it—but presumably we would want the views that academics espouse to be at least based on something that goes beyond the whole QAnon idea of fake news and invented facts. Do the Government have a view on that?

In Amendment 20, my noble friend is again concerned about practicality. To what extent should the Government expect to be involved, or expect the law to be involved, in the way higher education institutions are engaging in promotion and looking at the way people are appointed within higher education institutions? We are not necessarily suggesting in any way that people’s jobs should be put at stake, or indeed that they should not be promoted, but this is a probing amendment to understand how far this legislation is intended to go.

Finally, I suspect the last word from me today is on Amendment 23, also in the name of the noble Baroness, Lady Bennett of Manor Castle. Again, to what extent can the Government and the law be involved? What is the Government’s intention here? How far do they intend to interfere further in higher education institutions?

[Lord Johnson of Marylebone (Con)]

My Lords, I share the concerns of the noble Baroness, Lady Fox, around Amendment 15. I was quite pleased when the Government removed this language at an earlier stage of the Bill’s proceedings. I have concerns about it on a number of levels, but I shall focus on just two of them.

First, I think it would be potentially a big brake on the development of greater interdisciplinarity in academia. The ability of people to work across disciplines is vital to our ability to make progress on some of our biggest challenges as a society, climate change among them but far from the only one. Requiring academics in effect to stay in their lane would be a big brake on that and stop a lot of creative thinking. Research suggests that at the moment the most impactful science is happening at the margins of disciplines, when people take the courage to work with their peers in other disciplines and to think about the shared learnings and transferable skills they take from one academic discipline into another. If the Bill inadvertently sent out a message that this was epistemic trespass, it would be very bad for the quality of our science.

[Baroness Smith of Newnham (LD)]

Sorry, it is me again, but this is me as myself. Can the noble Lord explain why it is different for academics working at the margins of their fields but not experts in other fields, whose rights will not be protected by the Bill but who might also be contributing meaningfully to further research and pushing the boundaries of knowledge?

[Lord Johnson of Marylebone (Con)]

I think there is a marketplace in ideas—maybe I am not answering the noble Baroness’s question as she might like. Good ideas stand the test of time, they get picked up by other academics, they get cited, and that whole process of establishing which ideas are good and which are not is pretty effective and works well. The charlatans, the snake oil peddlers and the bullshit artists find that their ideas will not get repeated endlessly and established in the canon of good academic practice.

My second reason for questioning whether it will be sensible to reintroduce this language into the Bill is that I simply do not think it is practicable in any meaningful way. Who is to police the boundaries of someone’s academic expertise? Who is to stand in judgment and say, “You’re qualified to have an opinion”—unpopular or controversial—on a particular subject? I simply do not see that as viable, so I am very hopeful that the Government will not relent and let it back in.

Higher Education (Freedom of Speech) Bill

Baroness Smith of Newnham Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

[Lord Sandhurst (Con)]

My Lords, I am grateful for the support that has already been given to Amendment 69 by the noble Baronesses. I can therefore deal with it quite quickly, just to explain what it does.

It would add a new provision to Section 31 of the Counter-Terrorism and Security Act. The effect would be that the duty imposed under Section 26(1) of that Act, which I will explain in a moment, will not apply to any decision made by a provider, in effect, which directly concerns the content or delivery of curriculum, the provision of library or other teaching resources, or research carried out by academic staff.

The simple way to look at it is this. Section 26(1) of the Counter-Terrorism and Security Act applies directly to a specified authority and imposes a duty to

“have … regard to the need to prevent people from being drawn into terrorism”—

in other words, the Prevent duty. Section 31(2) provides that, when a specified authority—in other words, an academic institution—is carrying out that duty, it must have regard to the Prevent duty. Such an institution

“must have particular regard to the duty to ensure freedom of speech, if it is subject to that duty”

and

“must have particular regard to the importance of academic freedom”.

Amendment 69 would clarify what is to be encompassed in that on a more express basis by making it absolutely clear that, where the specified authority is directly concerned with content or delivery of curriculum, the provision of library and teaching resources, or research, the Prevent duty will not apply. That is all it does. It is very simple and clear, and it protects academic freedom. I think that is all I need to say in the light of the speeches that have been made.

[Baroness Smith of Newnham (LD)]

My Lords, on this occasion I speak as myself—I do not think I have to go quite as far as the noble Baroness, Lady Falkner of Margravine, in saying that I speak as myself and not as a Cambridge academic. And I do not have to channel my noble friend Lord Wallace, because he did not give me any briefing notes for these amendments.

The amendments in the name of the noble Lord, Lord Mann, are potentially helpful but I assume that, as with any legislation, the Government are extremely unlikely to say, “That’s a really good amendment. We’ll just take it lock, stock and barrel and put it into the legislation”. That normally does not happen. Even if a Minister agrees in Committee that an amendment might have some validity and value, there is usually a reason why its wording or a particular idea in it would not be quite right. I therefore ask the Minister, in responding to the amendments, to respond instead to the sentiment of what the noble Lord, Lord Mann, is saying.

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[Lord Hope of Craighead (CB)]

My Lords, I hesitate to intervene in this debate as I am not an academic. I look on the wording of the provisions in the Bill as a simple lawyer. For my part, I like the very simple wording of the existing provision in new Section A3. It is capable of accommodating changing circumstances and the various situations that academic institutions have to deal with.

The problem, with great respect to the noble Lord, Lord Moylan, is that he complicates that simple expression in new Section A3 with a serious of steps that are to be taken. I am not sure that anything he has said is inconsistent with what we find in new Section A3, but I would much rather keep it in the simple form that is already in the Bill without adding to the complication. To put it another way, the noble Lord, with great respect and with very good intention, is perhaps trying to do too much by expanding and trying to explain the duty already in new Section A3.

I do not object to the addition suggested by the noble Lord, Lord Willetts, but I do not think it is necessary as, if it is a relevant legal duty, it is already there to be performed; it does not need to be said. As a lawyer, I prefer simplicity—not all lawyers do—and I would like to keep it simple in the way it is already expressed in the Bill.

[Baroness Smith of Newnham (LD)]

My Lords, from these Benches we have relatively little to add. I strongly support what the noble Baroness, Lady Chakrabarti, said on various issues, not least about academic excellence because it is not just about academic freedom. Part of the purpose of a university is about educating and engaging in debate, but we are also trying to ensure that the minds of students are being stimulated. It is not just about academic freedom but that is part of it. As the noble and learned Lord, Lord Hope of Craighead, has said, Amendment 31 seems somewhat unnecessary. While on these Benches we support the amendments in the names of the noble Lords, Lord Willetts and Lord Stevens, if the Minister can persuade us that they are all implicit in the Bill and are not necessary, then perhaps they could not be moved.

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[Lord Moylan (Con)]

I have to say that I am sinking in sympathy on the general principle in this Committee, which is coming at me from every side. Nobody lacks sympathy with what I am saying—in general. It is only in the particular that they object to what might be put forward to practical effect—I am always open to the charge that I may have erred in drafting and may have got the wrong approach, and all that—but without substituting any particular proposal for the ones that they particularly find objectionable in my case. I agree that it is not a suitable parallel. Coercive police powers are not a suitable parallel with pedagogy—I picked it off the shelf—but they are perhaps a suitable parallel with somebody being driven out of their job because of particular views, because that too is a coercive act. If they are not defended from being driven out of their job, and we are simply saying that it will be dealt with by guidance and not in the Bill, what are we doing? They are skewered, because they now admit the need for change but they want it done by somebody else.

I now come to my noble friend the Minister, because I really must wrap up, and we have to move on.

[Baroness Smith of Newnham (LD)]

My Lords, surely there is a difference between something that is appropriate as guidance, where right-minded people would think that guidance was appropriate, versus Henry VIII clauses, where Ministers are seeking to grant themselves sweeping powers over which there is no scrutiny. What we are saying here is not, “Let’s grant Henry VIII powers to a Secretary of State”, but rather that there are appropriate places for things, and on this occasion, guidance is the appropriate place.

[Lord Moylan (Con)]

It is absolutely clear that of course there is a difference between guidance and Henry VIII powers but we are not in that field here. We are talking about what our contribution is as legislators and the fact that, on what we acknowledge to be tricky and difficult issues on which the public and leaders of universities would like to know our views, we are saying, “We aren’t going to agree on any of that. We’re going to give it to a body where we have no say and where there is no supervision for us at all, and we will trust them.” Frankly, it is a cop-out.

None the less, I am going to move to a close and thank my noble friend the Minister for the careful consideration that he gave to my amendment. I think that in some ways he is encouraging me to redraft it better for Report, as he pointed out its various flaws. He somewhat failed the acid test I set him of how his clause as currently drafted would deal with the situation of Professor Kathleen Stock. The noble Lord, Lord Grabiner, said that frankly it did not need to because existing provisions already do so and it was simply a failure of the university to apply them. If that is the Minister’s view, I think he should say so. Still, I am grateful to him because he gave very careful consideration to the amendment. With that, I beg leave to withdraw the amendment.

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If we think that we can have an impact on it, we plainly have to address the ways in which freedom of speech can be impeded for every academic who thinks that they have a career which involves original research. If we ignore it and it remains the lacuna that has been described, then we have basically ignored one of the key drivers of either academic freedom or impediments to it in our university sector.

[Baroness Smith of Newnham (LD)]

My Lords, I realise that people have been declaring interests at various points during proceedings. As an academic I assumed, having declared my interests at the start of proceedings on Monday for the same Committee that I did not need to rehearse them again. If necessary, I am happy to rehearse my interests at Cambridge University and associations with other higher education organisations.

The noble Lord, Lord Triesman, has begun to flesh out slightly that there is a difference between two types of funding. There is research grant funding which might come from UKRI, where one would imagine it should be funding blue-sky thinking. The ideas in the amendments proposed today—whether they have appropriate wording or not—are that people’s academic freedoms should not be damaged, everyone should have an equal chance to secure funding and that should not be constrained in any way, for example, by one’s political beliefs. It is difficult for anyone to refute that suggestion. However, if an academic proposes to do research for a third party, where that party is looking for findings in a certain area and wants certain things to be done, if they are then engaged in a contract the person providing funding might reasonably say “Actually, I don’t wish this research to be funded”.

This goes back to “unintended consequences”. I wonder whether these amendments work for the contracts or consultancy that academics might be undertaking, which is quite different. If you undertake consultancy, its funder might not want to publish the findings because they do not meet what they expected. It is quite difficult to see how you could constrain a funder in that way, when it is a different sort of research funding to that which a university or UKRI might provide to individual academics. I am not opposing the amendments but I wonder whether some of these things need to be explored a little further.

[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.

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[Lord Collins of Highbury (Lab)]

Does the noble Baroness not wish to speak?

[Baroness Smith of Newnham (LD)]

I think I have said everything that needed to be said from these Benches.

[Lord Collins of Highbury (Lab)]

I was tempted to declare my own interest as an assistant general secretary of a trade union that used to commission research. Once I knew the question and its answer, I would commission the research. There is that political side; social science is often involved in that sort of thing.

This has been a worthwhile debate. I am pretty certain that this Bill, or even this debate, is not the right place for these amendments.

The noble Lord, Lord Willetts, raised some fundamental points. One of my responsibilities is as the shadow FCDO Minister. In global research, how research—particularly medical research—can be innovative, and who controls and pays for it, is an interesting question. I certainly do not relate that to academic freedom; that is a different, commercial issue.

The noble Lord, Lord Stevens, made the excellent point that, if you are going to do research in a particular medical area, you are not going to be bound by employing someone who has no interest in pursuing that line of inquiry. For me, whenever these sorts of questions come up, the interesting thing about the sort of research done by my noble friend Lord Sikka is that the key is always transparency. Whenever a piece of research is published, I want to know who has funded it. I want to know who is ultimately responsible. To me, that is absolutely the key to this issue.

I was going to ask the Minister about impact; the noble Lord, Lord Moylan, raised this. Students Organising for Sustainability asked whether these duties would present a conflict between some universities’ health departments—at Imperial, for example—that have funding conditional on not recommending big tobacco in their careers service? That relates to advisers and freedom of speech. It would be interesting to hear the Minister’s view on that in relation to the debate on these amendments.

I have promoted debates in the Chamber on the broader issue of commercial research, particularly about who at the end of the day owns and controls the—I have a mental block.

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[Baroness Smith of Newnham (LD)]

I did not say from these Benches that it was too big to be included. I suggested that there needs to be more discussion and clarification of the issues at stake because they are even broader than the noble Lords, Lord Moylan and Lord Sikka, were discussing. That is not to say that they should not be included.

[Lord Moylan (Con)]

I am very grateful for that clarification, which I take as an encouragement to myself and the noble Lord, Lord Sikka, to enter discussions with the noble Baroness as we prepare for the next stage of the Bill to reach satisfactory wording on the topic.

Finally, I simply say how very grateful I am to everybody who spoke in the debate and managed not to say that it should be dealt with in the code of conduct. With that, and given the lateness of the hour—though I suspect the topic may come back—I beg leave to withdraw the amendment.

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[Lord Triesman (Lab)]

To be very clear, I have no difficulty at all with the concept that people in student unions who impede the free speech and academic freedom of others must be dealt with. For the record, I do not have a second’s question about that. I just want us to do things in this Bill that we can actually do. I wonder whether the noble Earl, Lord Howe, might discuss this offline with some of us who have helped to run these kinds of institutions in the past to see whether there is a practical solution to the problem that my noble friend has just illustrated. I do not know about the LSE, but I will lay odds that most student unions find out what their rugby clubs have done months after the event, if they find out at all.

[Baroness Smith of Newnham (LD)]

They might find out in the newspapers.

[Earl Howe (Con)]

I would hope that a rugby club would not be responsible for inviting somebody to talk about gender politics.

Higher Education (Freedom of Speech) Bill

Baroness Smith of Newnham Excerpts

Committee stage
Monday 14th November 2022 Lords Chamber

[Baroness Falkner of Margravine (CB)]

My Lords, I intend to intervene very briefly. I declare an interest as chair of the Equality and Human Rights Commission. The EHRC generally supports this clause so perhaps I need to add a caveat that I am not taking its advice but speaking in a personal capacity on this issue—perhaps “hybrid” is the best way to describe it, because I will lean on some of its arguments.

I broadly support the Bill. The importance of this clause is less to do with freedom of speech for individuals or visitors, and more to do with academic freedom. Academic freedom is profoundly important in terms of this clause. In the cases that have been mentioned, particularly on previous days in Committee, people have suffered real loss. At the commission, we carried out a very discreet and small piece of work—which is why it is not published yet—in a niche attempt to get under the skin of what was happening to academics in the daily course of their work in terms of a chilling effect and being able to express academic freedom. It was a small piece of work; nevertheless, we found clear evidence of a chilling effect in universities. This could extend to promotions or publications—it is very hard to get certain opinions published—or simply being welcome or having collegiate support in your faculty. There is a problem with the freedom of academics to research and publish what they do in certain areas that refer to some of the cases that have been mentioned here. I do not think the clause is designed to penalise those who offend who are just visiting speakers. It is much more about the people who have to do this day in, day out.

I want to address some points made by noble Lords. The reason this Bill is here is because we know that the Office for Students has been found wanting. The Office for Students has not been able to do what it should be doing, which is why we have the number of cases that have come to the courts. They have not come to the courts under employment law. They have had to come by different routes to get there because the Office for Students perhaps does not have the right powers. I do not wish to criticise another regulator, but perhaps it does not have the powers and that is why we are debating this Bill.

The noble Lord, Lord Grabiner, made a very powerful speech and I am convinced by a lot of what he said, which is why I am not in full enthusiasm supporting this clause. I will wait until Report for that. He made an important point that individuals, on the whole, do not have the resources to go to court. I think this point was picked up by other noble Lords as well. Welcome to the world of crowdfunding: anybody who has a gripe these days can crowdfund and will find somebody who is prepared to dip into their pocket to pursue that litigation. A lot of regulators and smaller bodies which are not fabulously well funded, as well as individuals, are having to face this blight of non-expert people reading an article in a paper, feeling outraged and getting on to PayPal and sending money. Charities know all about that. I do not support the clause but, on litigation, there are people who are endlessly willing to go to court, so I do not see this as a particular deterrent.

I will ask the Minister two questions. The first is on academics who come under extreme pressure in their departments, as was the case with Professor Stock, who has been mentioned. In order to resolve the situation, they are perhaps pressurised to agree—or perhaps they willingly agree, but at a time of huge distress—a departure with the institution. I do not know the detail of Professor Stock’s case, but that is sometimes done through confidentiality agreements and sometimes through non-disclosure agreements. The Strasbourg court has in some cases overridden those on the basis of Article 10, but in other cases it has not. Therefore, there is ambiguity in the defence of Article 10 rights when you have had to sign a non-disclosure agreement with an institution in haste at a time of great emotional distress: later on, you do not know whether you can get those rights upheld.

Finally—here I address the Minister directly—Section 43 of the Education (No. 2) Act 1986 created a legal duty for higher education providers to take “reasonably practicable” steps to ensure freedom of speech within their institutions. There has also been subsequent legislation, the last being as recent as 2017. Would not those protections be adequate if Clause 4 were not to stand part? If they are not adequate, the Committee needs the Minister to explain why, because we return to this issue every few years. I am rather swayed by the very knowledgeable opinions expressed today urging the Government to be cautious in this regard, although we generally support the Bill.

[Baroness Smith of Newnham (LD)]

My Lords, we on these Benches share the view that we do not need the Bill, as held by the noble Lord, Lord Blunkett, the noble Baroness, Lady Chakrabarti, and, I believe, the noble Duke, the Duke of Wellington—I apologise if I have taken his name in vain.

In order not to engage in Second Reading again, I will start with the point from the noble Lord, Lord Cormack: with any piece of legislation, ask yourself whether it is necessary. There seems to be a strong sense that there are serious questions about Clause 4 among all speakers across your Lordships’ House, from noble and learned Lords to academics to retired politicians—or rather retired MPs: people in your Lordships’ House may or may not think of themselves as politicians; on the Cross Benches they probably do not, but on some other Benches “retired MPs” may be the appropriate phrase. But there is almost unanimity across your Lordships’ House in opposition to Clause 4, or at least in doubt about it. The only Member who seemed keen to try to support Clause 4 was the noble Baroness, Lady Fox, but she did not seem to have been quite persuaded by it. Could the Minister be persuaded to think again? As noble Lords, particularly the noble Lord, Lord Grabiner, have eloquently pointed out, this clause is not fit for purpose or desirable.

It is not clear that the clause will even work in its own terms. The noble Lord, Lord Triesman, sought to point out that academics are particularly mischievous and that they can debate until the cows come home. However, whether you hang a portrait or how you design your gardens in an Oxbridge college are not things that we would normally take to litigation. That might be the sort of activity that engages academics, but this debate is much more profound. Here I declare my interest as a Cambridge academic; I declared it at the start of Committee stage, but I reiterate it on the record as we are currently in the main Chamber. What we are talking about here is not the sort of debate that people might have over dinner, or in the Oxford Union or the Cambridge Union; these debates are about very serious issues of freedom of speech. Yet it is not clear how Clause 4 will, in any way, strengthen freedom of speech, because, as we have heard from several noble Lords—in particular, the noble Lord, Lord Willetts—there is a danger of a chilling effect. The Government have not adequately thought this through, including the law of unintended consequences. Already, with something like the Prevent requirements, academics or students considering whether they will invite people to speak will think, “Is it worth the effort? Is it worth going through all these procedures to invite a controversial speaker?” Very often, the answer will be no. Bringing in the civil tort will only make that danger even more severe.

Yes, we need a way of ensuring that free speech can be guaranteed, but as the noble Lord, Lord Johnson of Marylebone, suggested, surely that is the job for the regulator. Trying to bring in lawyers is a recipe for even more hours of debate than an economics faculty or the synagogue of the noble Lord, Lord Triesman, might engage in. It will be costly, but will it benefit anybody apart from the pockets of the lawyers? It is not clear that it will.

This clause seems to be deeply unwelcome, and it is unclear that it is necessary. Can the Government think again and consider removing it by Report stage?

[Lord Collins of Highbury (Lab)]

My Lords, I start by saying that this has been an excellent debate. One of the excellent things about this House is that the debate has not been partisan at all—and certainly my contribution this afternoon will not be partisan.

I will share some thoughts about lawyers and courts. As a lifelong trade unionist, I have of course tried to resist courts intervening in industrial relations. This is for good reason, because when Governments have tried to use courts in industrial relations, it often ends in failure. The biggest change over the years—certainly in my experience—has come from the adoption of best practice, codes of practice and the introduction of a regulator. That has resulted in far more progressive and better change than when the courts were used as a weapon. I think that this clause is exactly about that.

The noble Lord, Lord Johnson, is quite right. Whatever we think about whether this provision will resolve some of those vitally important issues, the fact is that we have a well-established regulator, and this Bill proposes to strengthen that regulator. As I was listening to the debate, I thought about the one that we had on the Trade Union Bill. The Government at that time, when highlighting the problems in industrial relations, decided that the main focus—although I opposed that Bill at the time—should be on how we strengthened the regulator. Certainly, in terms of the certification officer, those powers were strengthened.

It is a fundamental question. If the Bill has a purpose, it is about change, and its main focus has been on how we make the regulator more effective. What the debate has clearly established is that this clause will have the opposite effect: it undermines the regulator and the changes that we are trying to make. The words that kept coming to my mind in Committee and at Second Reading are those of the Minister, who said that the provisions of Clause 4 were a backstop. I fear that it will be the first step and will result in very well-funded litigation, not to put right a wrong, change a practice or improve the situation, but simply to have a go and make a point. We call it “vexatious”, but that is the climate that we are in danger of empowering, if we are not careful.

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[Lord Willetts (Con)]

My Lords, in the light of that last comment, I can briefly intervene with reference to Amendment 65 in my name. I register my interests as a member of the board of UKRI and a director of Thames Holdings.

I have two questions for the Minister but they arise also from the important intervention of my noble friend Lord Johnson of Marylebone. First, we do indeed need some sense of proportionality; the figure of 1% of the total income of a registered provider was an attempt to get some sense of what constituted undue influence. It would be very helpful to have an update from the Minister on the Government’s view on that. Secondly—I am speaking very much in a personal capacity—this clause is really about research funding. Of course, my noble friend has made an important point about teaching income. In the legislation which he steered through this House, there was a rather clear distinction between teaching, which is a responsibility of the OfS, and research, which is a responsibility of UKRI. It is important that those two bodies work together.

It would also be helpful to hear from the Minister how she envisages the OfS scrutinising what in this clause is predominantly research funding, for which the OfS has historically and legally not had any responsibility, but for which a different government body, on whose board I sit, currently has the main responsibility.

[Baroness Smith of Newnham (LD)]

My Lords, I rise in part to move Amendment 66 in the name of my noble friend Lord Wallace of Saltaire. Before I do that, I would like to speak to the amendments tabled by the noble Lord, Lord Johnson of Marylebone, and the noble Lord, Lord Willetts.

My immediate reaction on reading Amendment 63 and the term “overly reliant” was to ask, how defined? In many ways, Amendment 65 in the name of the noble Lord, Lord Willetts, shows that there is a way of defining overly reliant; 1% might be the right amount or might not, but it begins to give us a way of saying what over-reliance means. Therefore, I believe Amendment 65 to be a helpful addition.

Amendment 64 is interesting but, as the noble Lord, Lord Willetts, pointed out, we need to be careful regarding whether we are talking about research funding or wider university finance. The noble Lord, Lord Grabiner, is obviously correct that the home undergraduate fee does not cover tuition adequately; international student fees are deemed by many higher education institutions to be extremely important. However, an important question raised by the noble and learned Lord, Lord Hope of Craighead, is: what is over-reliance? If 60% of a British university’s students came from one country and then its economy completely collapsed, that would leave the university more than decimated—potentially, minus 60% of its fee income if that market disappeared. So it is in many ways in the interests of higher education institutions to make sure they are not overly reliant on a single source of student fees.

Quite separate from that, in the case of freedom of speech the question then becomes: to what extent do we believe there is an issue about where the money is coming from? If we are talking about Confucius Institutes, for example, that is money coming directly into universities, and there might be questions about the conditions. If we are talking about undergraduate or graduate students coming to study in the UK, the questions might be slightly different. Wealthy parents from whichever country will not necessarily say, “We will send our offspring to the United Kingdom to be educated only if freedom of speech is in some way curtailed or if certain norms and values are articulated.” That is probably not what we will hear from China.

If there is somehow government intervention from countries paying fees for their brightest and best to come to the UK, maybe it is something to be explored, but I am not sure that this Bill is the right place to be doing that. There is a whole set of higher education funding issues that we might need to think about, but that then becomes very specific in the Bill, and I am not wholly persuaded that fee income will be a major factor in curtailing freedom of speech.

That also underlies Amendment 66 in the name of my noble friend Lord Wallace, which is a probing amendment to ask to what extent His Majesty’s Government think there is a problem with regard to the funding of student unions. Is money coming directly from the Governments of other countries? If so, are they constraining what student unions are able to do? The real question is: is this a problem that needs to be resolved, or is it simply the Government thinking they might like to have another regulator exploring a bit more what student unions are doing? In that case, perhaps we should not support that particular part of Clause 9.

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[Baroness Smith of Newnham (LD)]

My Lords, I think for the last time I will speak to an amendment on behalf of my noble friend Lord Wallace of Saltaire, and I will also speak to Amendment 67. My noble friend Lord Wallace’s amendment also talks about the role of the free speech director. It is about the appointment process. There is a clear issue with the nature of the role, as the noble Baroness, Lady Thornton, has already pointed out.

It is absolutely crucial that the person appointed enjoys the respect of all parties. I do not mean respect in terms of agreeing with what they are going to say but in feeling that they will be impartial. As the noble Baroness pointed out, it would be preferable if the free speech director had some legal expertise, and they also need to understand higher education. But it is absolutely vital that they have the respect of the higher education sector, hence Amendment 68, which suggests that the nominee should come from the Secretary of State after consultation with UUK and with the approval of the House of Commons Education Select Committee. That would at least mean that there is some cross-party approval.

However, there is a real question about the role of the free speech director and how it is going to be possible to appoint someone who is able to adjudicate and lead on free speech, without already being identified with various sides of political debates. Amendment 67 is important, but I would like the Minister to explain, if she can, how the Government feel they are going to be able to appoint somebody deemed to be appropriate by all sides of very often contentious debates, and by whom students, academics and others in higher education feel their interests will be served.

[Viscount Stansgate (Lab)]

My Lords, I support my noble friend Lady Thornton and I support the spirit behind both Amendments 67 and 68, for the following reason. Over the years—you could argue, over the centuries—the balance of power between the Executive and legislature has changed, and it has changed to the detriment of the legislature. Therefore, whenever I see an amendment of the kind proposed in Amendments 67 and 68, which requires that a particular appointment—in this case it is the free speech director but it could be any other important post that arises in legislation—should be subject to the approval of the relevant Select Committee of the House of Commons, I think that is a very good thing. It would be a modest step towards rebalancing the imbalance that I fear is infecting the relations between both Houses of this Parliament, and between us and the Executive. I support the amendments for that reason.

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[Baroness Barran (Con)]

I am sure that my noble friend is right that it does not. He may dislike the word “precedent” as well, but it would set a different precedent for how these appointments are made. When you have a chief executive and a director for fair access and participation who are not subject to that kind of consideration or consultation with the sector, it is fair to ask why this role should be, given that those are also highly important and sensitive roles.

[Baroness Smith of Newnham (LD)]

Would the noble Baroness feel the same regardless of who was Secretary of State for Education? Is there not a danger that politics could perhaps be seen in the appointment process? Might it not be better to make it as objective as possible? A precedent might actually be the way forward.

[Baroness Barran (Con)]

By following the public appointments process, which I hope your Lordships trust, we are endeavouring to make it as independent and objective as possible.

On the noble Baroness’s point about legal training or expertise, I reassure your Lordships that the successful candidate for the role will have been assessed for their understanding of the legal framework concerning freedom of speech and academic freedom, including how this relates to other relevant legislation. Although legal knowledge would be a benefit for the person undertaking the role, the director will be supported by a team of lawyers, caseworkers, board members and others at the OfS to support decisions under these measures. These decisions will legally be those of the OfS and not of the director personally.

Important oversight will also be built into the system once the director has been appointed. The director will be responsible for reporting to the OfS board on the performance of the OfS’s free speech functions. This reflects a similar provision in Schedule 1 to the Higher Education and Research Act 2017, which makes the director for fair access and participation responsible for reporting to the other members of the OfS on the performance of the OfS’s access and participation functions. This will not only ensure oversight of the role of the director for freedom of speech and academic freedom by the rest of the OfS board; it will also allow the OfS to co-ordinate and monitor its free speech functions better.

I therefore confirm that the appointment of the director will be in line with the usual public appointments processes, and there will be ongoing oversight of the role. On the noble Baroness’s question about where we have got to in the appointment, applications for the role closed on 27 July, and we are currently sifting them, after which there will be interviews and an announcement in due course. Given this, I hope that noble Lords will agree that these amendments are not required.

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[Baroness Bennett of Manor Castle (GP)]

I will speak briefly to Amendment 70 in the name of the noble Lord, Lord Collins of Highbury, who has just introduced it very clearly, and to which I attached my name. In doing so, I am prompted to declare an interest. The noble Baroness, Lady Smith, made a declaration of interest that made me wonder whether I should do the same, so I will take this last possible opportunity to declare that I receive support from King’s College London in the form of an intern—I now have a second excellent intern. I am not sure why that should be declared, but it is now on the record.

The noble Lord, Lord Collins, set out the case for the amendment very clearly. Like many speakers today, I remain convinced that it would be better not to have this Bill at all. But given that we have it, to add a sunset clause—a checkpoint written in the Bill to see what is happening—is unarguably a good idea. To stress the point that this is not a party-political matter but purely a practical, sensible and helpful suggestion to the Government, I will quote the noble Lord, Lord Grabiner, from earlier in this debate:

“Often, the legal process, especially a new-fangled one, confuses and undermines well-intentioned purposes. It is also often the case that the introduction of lawyers and the courts merely fuels increased tension.”


There have been huge concerns expressed around this point about the Bill. This amendment is just a simple and practical measure to say, “Let’s have a checkpoint. Let’s not have another version of the Dangerous Dogs Act; let’s make sure we’re not making things worse by adding this simple provision, Amendment 70.”

[Baroness Smith of Newnham (LD)]

My Lords, a sunset clause seems to be eminently sensible in a Bill that seems to have so little support. I also note that in proposed new subsection (4) in the amendment, there is actually an opportunity for the Government to offset the sunset aspect of the clause, should they feel that the legislation is going well,

“subject to approval by resolution of both Houses of Parliament”.

This would mean that the legislature can keep its rightful place, even while we allow the Government to go ahead with this legislation, about which we are not entirely convinced.

[Lord Adonis (Lab)]

My Lords, if I followed the earlier debate correctly, we have now had six months without a free speech director. I believe that that is correct, based on my noble friend’s earlier amendment probing when the appointment was going to be made. If it were so vitally important that this legislation was on the statute book because there was an imminent danger to freedom of speech, presumably the free speech director would have been appointed by now.

In my experience, it is a golden rule of public appointments that those who are most important are filled immediately—for example, we would not be without a Prime Minister for six months because the country would not be run. However, it does not appear that freedom of speech in universities has been imminently threatened and undermined by the fact that there has not been this rather Orwellian-sounding and very un-Tory-sounding person—a free speech director; somebody from the centre who will decree that free speech shall prevail—in post.

If the sunset clause does come in, as my noble friend is suggesting, it may be that, by the end of it, we will still not have a free speech director, and so we will not have seen whether these vital provisions will underpin freedom of speech in our campuses up and down the land. Since this appears to be largely a Bill in search of a problem, removing it from the statute book at the earliest possible opportunity—maybe even before the Orwellian free speech director has been appointed—would seem to be a thoroughly worthwhile development. Since, by then, there could be a Labour Government in office—I imagine that the Tories would be very wary of a free speech director appointed by a Government opposed to them, who could have all kinds of secret agendas—this could be in their interests too.

The Minister may have a wonderful opportunity here to avoid implementing legislation which the Government themselves do not appear to be very keen to implement at the moment—given that they still have not appointed a key officeholder under it—and to prevent it being misused by their political opponents.

Higher Education (Freedom of Speech) Bill

Baroness Smith of Newnham Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Lord Moore of Etchingham (Non-Afl)]

My Lords, I cannot call the noble Lord, Lord Willetts, my noble friend because I am non-affiliated, but outside this House, I call him my friend. He has been my friend for 45 years. I can testify that his well-known nickname is correct and that he does have double the cerebral capacity of the rest of us, so we should all listen very carefully to anything he has to say.

However, although he made many good points, I do disagree with his conclusion. We must not lose sight of the wider context, and I think there is a slight risk that we might do so in some areas of this House. There is a danger of us suffering from what economists call producer capture. By that, I mean that there are a great many people here who are very close to the top of universities. It is not very surprising that they all tend to think that universities are running themselves quite well and that it is all basically all right. However, I think there needs to be a little more power for the voice of the ordinary student and the ordinary, not-very-important academic who is having a rough time. I was very grateful for and impressed by some of the points made about that by the noble Lords, Lord Macdonald of River Glaven and Lord Hunt of Kings Heath, in particular, who really tried to bring home the reality of these difficulties.

Going back to why the Bill exists at all, it is to do with the fact that the traditional freedom of speech ethos in universities came under threat. In the past, threats to academic life came from without but now they are coming from within. That is the essence of the problem and why the Bill got going. Even though there have been some changes and alterations of behaviour—for example, the establishment in Cambridge University was defeated in its attempt to suppress free speech and real free speech won—there are still examples.

In Cambridge quite recently, the master of Gonville and Caius College—I think she did not fully understand that the word “master” in the Cambridge or Oxford circumstances is a misnomer and you cannot issue orders at all; it is a very unmasterly position—said that the presence of Helen Joyce speaking in that college would be hateful and that, on those grounds, her talk should not take place. I believe that Helen Joyce would not have been allowed to speak had it not been for the fact that Professor Arif Ahmed, the great leader of free speech, was a don in that college and stood up for Helen Joyce, so the meeting finally took place.

There is a problem, and it has not been sufficiently acknowledged by everybody here. Therefore, it seems that there has to be in the Bill—as there was and to some extent still is—some form of deterrent. There has to be something that goes beyond the universities themselves to make them feel a little nervous about where they have got to. Since universities are currently failing in many cases to uphold the duty of free speech, we cannot just depend on people such as the expert regulators, to which the noble Lord, Lord Grabiner, referred.

The idea of a new tort is to change that. The law of tort offers remedy to private citizens when private duties are breached. This is as opposed to the upholding of more general aspirations, as might be achieved, for example, by judicial review. This difference has not been sufficiently acknowledged in some of the things that have been said. If an academic could bring timely action under a statutory tort, that would concentrate the mind of the university at which he or she worked. That university would face a real deterrent to impeding his or her free speech, because a county court could find against it, with legal, financial and reputational consequences. As the noble Baroness, Lady Shafik, said, I do not quite understand how the prospect of some suit about free speech would frighten people who were inviting people in the cause of free speech. If, however, free speech complaints must always be brought first to an internal complaints procedure, the university will be tempted to mark its own homework favourably or to spin out the process. Early complainants will then retire exhausted and later, prospective ones will not even bother to start.

I add that the Office for Students, on which much reliance is being placed, is not necessarily the best arbiter. As its name suggests, it is for students. The people at universities for whom the free speech stakes are highest are not undergraduates but career academics. The statutory tort, pursuant to which injunctive power could be exercised, would give them the strong protection they increasingly need. I therefore oppose the amendment in the name of my real friend, the noble Lord, Lord Willetts, and support the amendments in the name of the noble Lord, Lord Moylan.

[Baroness Smith of Newnham (LD)]

My Lords, I do not want to detain the House too long because I realise that there will be a move to a vote relatively soon. I support Amendment 22 and will politely say a few words against the noble Lord, Lord Moore, if I may respectfully put it that way.

I am an academic at the University of Cambridge, I signed the amendments put forward by Professor Ahmed and I believe in free speech. However, I am concerned that the idea of a tort will do exactly the reverse of what the noble Lord, Lord Moore, just said. If we want to support the junior academics and students, the way to do that is not to have a legal procedure. As a noble Lord on the other Benches mentioned, the people who will benefit most are the lawyers; the people least likely to be able bring these legal cases are students and junior academics, particularly junior academics at an early stage in their careers. Therefore, the whole idea of a tort will do exactly the opposite of what the noble Lord just implied.

I absolutely agree that we need to listen not just to heads of Oxbridge colleges, chancellors and vice-chancellors of universities, and people like me. However, I hope I speak on behalf of students, members of the casualised part of university staff and other academics in saying that this legal provision will not benefit individuals because those who will have the resources to fight are the university bureaucracies, not individuals.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, I have attached my name to Amendment 29 in the names of the noble Lord, Lord Collins, and the noble Lord, Lord Blunkett, which was so ably presented by the noble Baroness, Lady Thornton. Having heard those two speeches, I will be extremely brief because the case has been very powerfully made. At this stage these are probing amendments, but there is a need for a strong response from the Minister.

As the noble Lord, Lord Wallace, said, there is very grave concern about the nature of public appointments in many areas. If you combine that with the very grave concern that has been expressed from all sides of your Lordships’ House about the Bill and its operation, it makes this a particularly crucial response from the Minister.

I also note that in Committee there was an amendment to put a sunset clause on the Bill. It was not my amendment, but I attached my name to it. It was not brought back so I have not pushed forward with it, but that would have been an alternative way of tackling this problem; in some ways it would possibly have been a stronger way. Given where we are now, at the end of Report, we need to hear some very strong reassurances.

[Baroness Smith of Newnham (LD)]

My Lords, I support the thrust of both amendments, but I am rising to add to my declaration of interests earlier. I noted my role as an academic at Cambridge University. I am also a non-executive director of the Oxford International Education Group. I neglected that because the previous declaration linked to what I was saying. I was advised by the clerks to pop up at some point today. I declared it appropriately in Committee.

[Baroness Barran (Con)]

My Lords, I will now address the group of amendments concerning the appointment of the new director for freedom of speech and academic freedom at the Office for Students. Amendment 29, tabled by the noble Lord, Lord Collins of Highbury, and very ably presented by the noble Baroness, Lady Thornton, seeks to impose extra requirements on the appointment of the director for freedom of speech and academic freedom and their role once in post. Amendment 30, tabled by noble Lord, Lord Wallace of Saltaire, similarly focuses on the appointment process.

As I said in Grand Committee, I want to be clear that

“the director for freedom of speech and academic freedom will be appointed in the same way as other members of the OfS board, by the Secretary of State under the Higher Education and Research Act 2017.”—[Official Report, 14/11/22; col. GC 751.]

Although this is not officially a public appointment, it will be done in accordance with the public appointments process. This will ensure the independence of the process.

It is not necessary to include the additional requirement of confirmation of the appointment by the Education Select Committee. Such confirmation is not required for other members of the Office for Students board more generally, including the chief executive and the director for fair access and participation, who has a similar level of responsibility. The only role within the OfS which has involved prospective appointees appearing before the Select Committee is that of the chair. It would therefore be disproportionate and an unnecessary level of scrutiny that would set an unhelpful precedent for appointments to both the OfS and other public bodies, including those outside the higher education sector.

As for the involvement of the higher education sector in the appointment through formal consultation—I am afraid I cannot comfort the noble Lord, Lord Wallace—which is envisaged under his Amendment 30, this conversely would threaten the independence of the role.

I turn to the proposed additional reporting requirements to Parliament in Amendment 29. There are already several provisions in the Bill that provide for scrutiny of the operation of the Bill once enacted. Under Clause 5, the Secretary of State can ask the Office for Students to report on freedom of speech and academic freedom matters in its annual report or in a special report. This report must be laid before Parliament. This is based on the approach in Section 37 of the Higher Education and Research Act as regards equality of opportunity.

Under Clause 9, the annual report must include a summary of information on overseas funding and conclusions on patterns and trends of concern. This is based on Section 68 of the Higher Education and Research Act as regards financial sustainability.