Higher Education (Freedom of Speech) Bill

Danny Kruger Excerpts

Consideration of Lords amendments
Tuesday 7th February 2023 Commons Chamber

[Matt Western (Warwick and Leamington) (Lab)]

Let me start my remarks with the word “otiose”. Occasionally the words that frequent a debate come to symbolise the essence of that issue, and for our debate on Lords amendments to the Higher Education (Freedom of Speech) Bill the word is otiose. It is not a word I had had the privilege of encountering before, but it is a word that will forever be linked to this Bill.

This legislation is now almost worthy of two candles in the making and baking. It is almost two years to the day that the former Education Secretary but five laid the foundations for the debate we are still having on how freedom of speech should be protected on university campuses. I deeply regret that we are still having that debate, not least because every hour of parliamentary time spent debating the Bill and its provisions is an hour not spent debating the real issues faced by students and wider society.

[Danny Kruger (Devizes) (Con)]

I would be grateful for some clarity from the hon. Member. He says that the whole Bill is otiose, but does he not recognise any challenge to free speech on university campuses in this country?

[Matt Western]

We are talking about the Lords amendments, and what is otiose is the debate that was had in the Lords specifically about the tort I am about to speak to.

Every time I visit a university campus, I not only talk to vice-chancellors and senior leadership teams or tour a new teaching block, but insist on meeting students. I meet them, often on my own, to hear their concerns—the unvarnished truth of what is happening on our campuses—and, above all, to listen to their priorities. I can categorically say that not once has a student ever told me that the risk to freedom of speech on campus is their most pressing concern. Why would it be when three out of every four students are currently worried about managing financially, one in four has less than £50 a month to live on after rent and bills, and 10% of students are using food banks to get by. These insights and statistics are all gleaned from a recent survey by the National Union of Students.

It is now a sobering 637 days since the Bill was introduced in this House—incidentally, the longest that any Bill sponsored by the Department for Education has taken to progress through the House since 2010—and during that period we have had three Prime Ministers and five Education Secretaries. The higher education brief has been bounced around the portfolios of five different Ministers like a political pinball but without the wizard—so much so that I find myself in the somewhat absurd position of debating a Bill about freedom of speech on campuses and academic freedom with a Minister for children, families and wellbeing.

--- Later in debate ---

[Paul Blomfield (Sheffield Central) (Lab)]

I rise to oppose the motion to disagree with Lords amendment 10.

There ought to be a basis for cross-party agreement, as there was in the Lords. I sense from many of the contributions so far that there will not be cross-party agreement, and that wiser heads are not prevailing on the Conservative Benches—those wiser heads are being kept below the parapet.

I read the letter that the Minister circulated yesterday, in which she acknowledged that creating a statutory tort

“has been a contentious measure throughout the passage of the Bill”.

That is something of an understatement. She went on to acknowledge that, in what she must recognise was a thoughtful and serious debate in the other place, many peers had

“raised concerns that the measure would subject higher education providers, colleges and students’ unions to costly, time consuming and unmeritorious or vexatious claims”.

But in her letter she just brushed that aside, on the basis that she had spoken to many academics who agreed with her, which is a rather interesting example of cancel culture at work, as she casually disregarded views that do not fit with her own.

We should be clear in this debate that, on both sides of the House, we all strongly believe in freedom of speech within the framework of the law. We should particularly cherish it in our universities, but we should also recognise the difficulties associated with legislating to that end. The right hon. Member for Chippenham (Michelle Donelan), the former universities Minister and, as of today, the new Secretary of State for Science, Innovation and Technology, saw those difficulties for herself when she explained the Bill’s operation at the start of its long life.

The hon. Member for Orpington (Gareth Bacon), who is no longer in his place, said he is concerned that we have reached the point at which this sort of legislation is necessary. How we manage the rights and obligations of free speech has been a live issue of concern for many years, and not simply in relation to universities. That is why Parliament has framed the limits of free speech.

In a previous life, I was responsible for co-drafting the University of Sheffield’s code of practice to ensure compliance with section 43 of the Education (No. 2) Act 1986, and I oversaw its operation in providing a platform for speakers with whom I profoundly disagreed. There is an irony in that, because the Government soon came to regret the way the Act’s provisions were used to secure platforms for those with whom they profoundly disagreed, and they raised those concerns with universities and students’ unions.

Some of the invitations to speakers after the passage of the 1986 Act were made vexatiously by those who were more interested in testing the legislation, or in trying to create embarrassment for a university and its students’ union, than in the issue under discussion. The fact that 36 years on we are debating the same issue is a reflection of the difficulties of making laws in this area, and that is something we should think about carefully when there are good alternatives.

More recently, I served on the Public Bill Committee for the Higher Education and Research Act 2017, and I recall expressing my concerns over aspects of the Government’s proposals for the creation of the Office for Students. I argued with the then Conservative Universities Minister, now Lord Johnson of Marylebone, who made the case for the Office for Students as the way of regulating the sector. So I was interested to read his contribution to the debate in the House of Lords, where he argued that clause 4 was not only unnecessary but would “undermine the regulator”—the regulator that the Conservative Government have put at the centre of the higher education architecture in this country. He powerfully made the case that the OfS can deal with these issues more effectively than civil litigation by imposing

“conditions of registration on any provider that falls short of the enhanced duties created by this Bill.”

He went on to say that those conditions of registration provide a wide range of

regulatory tools…from simply seeking an action plan from a university…through to imposing fines on an institution if it does not deliver”.—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 716.]

I was also struck by the contribution of another Conservative former Universities Minister, Lord Willetts, who highlighted the role of the Office of the Independent Adjudicator, in addition to the OfS, in providing a “clear process” to which any student can turn with a concern about any potential suppression of freedom of speech. But far more importantly—this point has been made and Ministers would do well to pay regard to it—Lord Willetts argued that the provisions of clause 4

“could have exactly the opposite effect to the one intended.”

He set out two ways in which this might be the case. The first was that

“people who are thinking of…inviting speakers or organising events—

would be—

“inhibited from doing so for fear that they could potentially find themselves caught up in complicated and demanding legal action”.

I have to say that in a different way I saw that chill factor in operation as a result of the 1986 Act.

Secondly, Lord Willetts highlighted the costs of litigation and the uneven resources available to those taking and defending action, pointing out that there is a “real risk” for student unions that would not have the resources to defend themselves against litigation. As he said, student unions

“are an important place in which students with a wide range of political views have their first experience of organising debates, exchanging ideas and disputing.”—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 713.]

He pointed out that the “threat” of potential litigation that could bankrupt a student union would not serve the interests of freedom of speech in our universities.

So two former Conservative Universities Ministers—the two who have arguably had the most impact on our higher education system over the last 13 years—are both saying that the tort provided by clause 4 is wrong and both back Lords amendment 10. It did not stop there. Lord Pannick argued that effective regulation from the OfS is quicker and cheaper than civil litigation. My good friend Lord Blunkett, who has talked about his experience of being no-platformed as a Secretary of State, made the case that the tort will cause “more confusion” and “difficulty”. Lord Grabiner has been mentioned and, as somebody who should know, he said that High Court judges are less well placed than the regulator to deal with these issues. Lord Macdonald, as a former Director of Public Prosecutions, said that the clause, far from encouraging free speech, will have a “chilling effect”.

The case could not be clearer. Creating the tort would cause confusion, slow down redress, open the terrain to vexatious claims, waste resources, undermine the regulator that this Government have put in place and, above all, create a chill factor that would undermine free speech. We should come together tonight to reject clause 4 and support Lords amendment 10.

[Danny Kruger]

I rise in support of the Government and am pleased that they have decided to reinstate the clause that includes the tort. I was taken aback by the shadow Minister’s suggestion that such a provision was otiose. He suggested that there are much larger issues that the House should be debating. I think that this is where we see a real difference between our parties. The fact is that we think that few things are more important than the quality of cultural and academic debate in our country, and the context in which young people are educated and brought up. But a spirit of oppressive cultural conformity has taken root across the institutions of the United Kingdom and, worst of all, it has taken root in our universities, where freedom of speech should be protected.