Higher Education (Freedom of Speech) Bill

Julian Lewis Excerpts

2nd reading
Monday 12th July 2021 Commons Chamber

[Alex Sobel (Leeds North West) (Lab/Co-op)]

Although I was stuck getting here, I have listened to a number of speeches. It is entirely normal for me to disagree with speakers and to find what they say objectionable, but I have to say that I heard a couple of speeches—not by the hon. Member for Penistone and Stocksbridge (Miriam Cates) but by other Members who spoke before her—that I felt were verging on hate speech themselves and were objectionable to a number of minority groups in this country. I felt that the quality of some of this debate was demeaning to this House.

[Dr Julian Lewis (New Forest East) (Con)]

Will the hon. Gentleman give way?

[Alex Sobel]

I will give way, although I might not agree with what the right hon. Gentleman has to say.

[Dr Lewis]

Indeed, and that surely is the point. What really worries people on the Conservative Benches is that what starts off with the justified condemnation of hate speech ends up by saying that people speaking in a free Parliament are verging on hate speech themselves. Can the hon. Gentleman not see the slippery slope of the argument he is putting forward?

[Alex Sobel]

I will make an argument about the slippery slope. I think there are Government Members, and maybe even some Opposition Members, who feel that supporting the Bill will settle some old scores, make a dog whistle to people who want to hear it and give a nod and a wink to a certain sort of constituent.

As somebody of Jewish descent whose family members came from the war generation in eastern Europe, I feel strongly that the slippery slope we are going down is one that Government Members may not be able to control. I am not saying that they are like this themselves, but other forces in society will take advantage of and utilise this type of legislation in a way that the Government will cease to have control over. It will create a runaway train effect. I do not want that to happen in this country; people like me and others in this Chamber would find it a difficult country to live in.

We just need to look at what happened yesterday to three of our brave England footballers after they missed a penalty—something that happens to every footballer during their career—and the horrendous racism that they experienced. I will come back to the subject, but I was deeply uncomfortable at some of the previous contributions to the debate and I felt that I had to raise that.

During my time at the University of Leeds—I was both a student and staff member there—the two most notorious new faces of the British far right made our campus the site of their race war. Their story tells me all I need to know about why this Bill should never reach the statute book. During my year on the executive of the Leeds University union, supporters of Claire Fox, now Baroness Fox, of Living Marxism, established a free speech society to remove the students’ “no platform for racists and fascists” policy in the name of libertarianism—maybe the reason why many Government Members support the Bill.

Two unknown first-years joined the society and when the adherents of Baroness Fox graduated, those two took over the society and stepped up their activities on campus. Many known racists and fascists were seen in their company on campus. It was difficult to administer the policy and legal framework that now exists and to vet those whom the free speech society were platforming in rooms they were trying to book out.

The two people involved were Chris Beverley and Mark Collett—now two of the most notorious fascists that this country has seen. Mark Collett was tried alongside Nick Griffin in 2006; I will come back to that. They were both in a number of notorious documentaries produced in the 2000s; I suggest that Members who do not know of them should watch “Young, Nazi and Proud” to understand more about these two characters.

The issue came to a head in Collett’s and Beverley’s attempt to overturn the “no platform for racists and fascists” policy at the general meeting of the students union. It happened to be held in the refectory that had hosted “The Who” in their seminal “Live at Leeds” concert. There were easily over 300 people there. Many, many Jewish students, as well as the campus rabbi and I, spoke against the attempt to remove the policy. Collett and Beverley were the only ones to speak in favour—and in a highly inflammatory way. Their attempt was overwhelmingly defeated.

It had been clear for some time to all on campus who Collett and Beverley really were, but the mask slipped for everybody everywhere that day. If the policy had passed, Collett and Beverley would have invited figures such as Nick Griffin and David Irving, this country’s leading holocaust denier, on to campus under the auspices of free speech. The free speech society soon ran into trouble and at the following AGM the students union fully understood the issue of these two fascists but gave them a room, fearful of legal action. The meeting did not go ahead and the society, which was acting as a front for fascism by that point, was disbanded. That was due not to any policy of the students union, but to protests by students themselves.

Just five years later, at about the same time as Mark Collett was on trial with Nick Griffin at Leeds Crown court for race hate crimes, at Leeds University in February 2006, a contributor to the university newspaper Leeds Student gave an interview to Dr Frank Ellis, in which the academic expressed support for the bell curve theory that said that there were racial differences in average intelligence. The Leeds Student also published an article by Ellis, “Time to face the truth about Multiculturalism”, in which he described the Parekh report as

“a very nasty anti-white tract”.

He then went on to be interviewed in the media, and the students union put out a statement calling for his dismissal. Leeds University condemned Ellis’s views as “abhorrent”. I had left the university by then, but I went to meetings there and objected, as a member of the alumni committee, to his continued employment. Ellis was subsequently suspended by the vice-chancellor pending disciplinary proceedings, which never concluded because he retired early.

My point is that if this law had been in place, the student union and the university would never have taken any action against these radical, far-right fascists, whose only intent is erasure of diversity on the planet: the erasure of people like me, Charlotte—I am sorry, my hon. Friend the Member for Warrington North (Charlotte Nichols)—and others in this Chamber. That is why people need to be really careful about how they use free speech. Free speech is something that we all defend—we all talk about pluralism—but it can also be a cover for something much deeper and much more unpleasant, with the consequences that we all know and speak strongly against in this Chamber every year. Yesterday we marked Srebrenica Memorial Day. This Government need to be very careful on the dark road that they are taking us down.

Higher Education (Freedom of Speech) Bill

Julian Lewis Excerpts

Report stage
Monday 13th June 2022 Commons Chamber

[Michelle Donelan]

Many countries have worked with their university sectors to enhance the choice on offer. For the first time, the Bill will give the OfS the power to act if free speech is in question, so it is radical in that sense.

[Dr Julian Lewis (New Forest East) (Con)]

I appreciate that the provision is mainly about free speech in UK universities, but does the Minister share my concern about the proposed £155 million gift from the billionaire chairwoman of a Vietnamese company to Linacre College, Oxford, a distinguished graduate college, on condition that the name of the college is changed to that of the chairwoman? Her company is extremely close to the Vietnamese Communist Government, where there is certainly very little freedom of speech. The Privy Council has to approve the change. Are the Government taking a view on the matter?

[Michelle Donelan]

I have recently been alerted to this issue and I am actively investigating it. I will update my right hon. Friend in coming days.

Government amendments 3 and 4 and 6 to 10 make provision on the payment of security costs for events. The amendments place a duty on higher education providers, colleges and student unions not to pass on security costs unless in exceptional circumstances to secure freedom of speech within the law. The Government want to put an end to the practice of no-platforming by the back door, raised by many Members in Committee, including my right hon. Friend the Member for South Holland and The Deepings.

I said then that I was listening, and the amendments address the concerns. We have seen reports that a student society faced a £500 security bill from Bristol University student union to allow the Israeli ambassador to give a talk, while charging nothing to allow his Palestinian counterpart to do the same. The Union of Jewish Students has reported to me that some Jewish societies have even been billed for security costs for having stalls at freshers’ fairs. That is outrageous. If a university has a culture on campus in which security is required for inviting routine speakers, it has a culture in which intimidation, threats and violence are seen as acceptable. That does not constitute promoting free speech. The solution is to stamp that unacceptable culture out and stop student societies paying the price for those who break the law.

Government amendment 5 will change the coverage of college student unions, often called junior and middle common rooms. It makes it clear that the Bill does cover the activities of JCRs and MCRs, thereby clarifying the position.

Government amendment 11 will make it clear that the OfS is not required to make a decision as to the extent to which a free speech complainant is justified if that complaint is then withdrawn. Government amendments 12 and 15 set out how publication under the scheme will work in relation to the more general publication provisions recently inserted into the Higher Education and Research Act 2017 by the Skills and Post-16 Education Act 2022. In particular, the Bill provides for absolute privilege against defamation claims arising from publication of OfS’s decisions under the complaints scheme, whereas the general provisions give qualified privilege to other publications. The absolute privilege matches the approach taken by Parliament to the complaints scheme run by the Office of the Independent Adjudicator for Higher Education.

Government amendments 1, 2 and 16 will remove the express limitation on the definition of academic freedom that it covers only matters within an academic’s field of expertise. Once again, the Government have listened carefully to Members who raised issues in Committee, including my hon. Friend the Member for Congleton and my right hon. Friend the Member for South Holland and The Deepings.

The Bill marks the Government delivering on our manifesto pledge, while listening and strengthening the Bill throughout.

--- Later in debate ---

[Jess Phillips]

It is an honour to follow the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith). I fear that Cambridge University will not come out well from my speech either.

The debate is about freedom of speech on campus. My hon. Friend the Member for Liverpool, Riverside (Kim Johnson) pointed to six cancellations—in my view, that is six too many—but I am going to talk about the silencing in non-disclosure agreements, which thousands of people are suffering from.

We know that the data on violence and abuse, and certainly on sexual violence, is a tiny fraction of the reality, but even that data shows that millions of pounds are being spent on this issue. The amendment tabled in my name and that of my hon. Friend and near neighbour the Member for Warwick and Leamington (Matt Western), would stop young men and women—including university staff—being prevented from speaking about their experiences on campus. That is what this is all about, isn’t it? It is about people being able to talk about their lives, experiences, beliefs and freedoms on campus. Currently, we are all sitting by while that section of the community, who may have been raped on campus, bullied, harassed or racially abused, can be silenced by that very institution and cannot speak about it at all. I am going to talk about those people.

Horrendous examples of silencing have been reported in the press. Brave women have spoken out even though they know the risks. According to one student, her university imposed a “blanket gagging order” on her after she alleged she was violently raped by another undergraduate. The victim claimed she was warned she would be expelled if she went to the press to report this violence or to talk about the college procedures. That gives you a clue as to where some of these people are from, because I said the word “college”; most other universities do not say that. The non-disclosure agreement was imposed. Apparently, the college had tried

“desperately to convince her not to complain”

and she had

“lost count of the members of staff who tried to silence, scare, threaten and undermine”

her.

According to an investigation by the magazine Elle, a student alleged she was sexually assaulted and then endured terrible treatment from the university relating to her claim of violence. Post-graduation, she complained to the university about how it had handled her situation. She was eventually offered £1,000 compensation, without any admission of wrongdoing, and with a non-disclosure agreement to prevent her from talking about it. The student, exhausted by her experiences, signed the NDA.

[Dr Lewis]

rose—

[Alicia Kearns]

rose—

[Jess Phillips]

It does not seem very feminist, but I will give way to the right hon. Gentleman.

[Dr Lewis]

I have not heard of this case before. Did the student not go to the police? If she did, what happened?

[Jess Phillips]

I almost wish for the right hon. Gentleman’s sake that I had taken the other intervention. Has he seen the figures on police rape recording and reporting? In the first instance that I was talking about, the individual absolutely went to the police. Of the 66,000 women—I am speaking only about women now; there will have been more—who came forward and said that they had been raped last year, a charge will have been faced in about 600 of those cases; and then look at the number of convictions. Are we expecting our institutions, our workplaces, our university institutions not to have a role to play in supporting people when that has happened? As I am sure the right hon. Gentleman know, the balance of probability has a different relation to civil law than criminal law, so the idea that if a woman did not go the police she should not be allowed to complain to her institution is not one that I recognise and it is not one that this House recognised when we set up an independent complaints system. However, what often gets said to women when they come forward to their employer, to their institution, is, “Why didn’t you tell the police?”

--- Later in debate ---

[Jess Phillips]

I absolutely agree, and the amendment clearly covers staff being able to talk about their experiences. The Minister cited a member of staff who felt compelled to leave their employment because of what the Minister rightly pointed out was bullying. Had that member of staff signed a non-disclosure agreement, the Minister would never have been able to talk about them, and nor would that particular employee of that particular university. We would not even know what had happened. Had a non-disclosure agreement been signed in that case, which was, I believe, at the University of Sussex, the Minister would not have had her helpful example.

I took part in a debate on the television the other day about freedom of speech. A Government Member of Parliament, who I like and respect, turned to me and said, “The thing is, Jess, that no one can be forced to sign a non-disclosure agreement”—I just said my own name. Is that allowed? I don’t have to refer to myself as the hon. Member for Birmingham, Yardley?

[Dr Lewis]

It was a quote.

[Jess Phillips]

Yes, that’s right.

That Government Member said, “You can’t be forced to sign”, but that is to totally misunderstand the power imbalance. Someone might have worked hard and be the first in their family to go to university. They might have studied and done everything they could, because they wanted to go and make something of themselves. They might get into an institution that they are proud to say they are from. The fact that they could be raped on that campus by another student and complain, but then be threatened that they will be expelled if they speak out points to an enormous power imbalance. It is something that this House should legislate on for the sake of freedom of speech.

I welcome the Minister saying that she will take the proposals away, listen and perhaps do something in the House of Lords later in the process, but under this Bill, without our amendments, if a woman or a man, whether staff or student, is raped on campus, that person’s freedom of speech will be completely and utterly denied on campus and outside, and we would do nothing about it. Freedom of speech surely has to mean freedom of speech for all.

--- Later in debate ---

[Sir John Hayes]

We are dealing with a complex subject. Free speech by its very nature means people saying all kinds of things in all kinds of ways about all kinds of subjects. The hon. Lady is right that there will be tensions to be settled, which is precisely why the Government have put in place mechanisms to do that. They are going to appoint, as was said earlier, an office with responsibility for ensuring that this Bill’s intentions and provisions are applied consistently. The Government acknowledge the difficulties that she has highlighted, which is precisely why they are putting in place a person and team to do exactly that.

[Dr Julian Lewis]

rose—

[Sir John Hayes]

I can see that my right hon. Friend is about to make an erudite intervention.

[Dr Lewis]

You can always hope, Mr Deputy Speaker.

Does my right hon. Friend not feel as I do that the interventions that he has just taken show that perhaps the diminutions on free speech have already spread into other areas of legislation rather further than he and I would like them to have done?

[Sir John Hayes]

I agree entirely, which is precisely why this Bill is so welcome, but it needs to be part of a bigger programme of work by the Government to do what I described earlier, which is to unpick some of the legacy of the dark days of Blairism and the impact that that has had on all kinds of aspects of our wellbeing. My hon. Friend is right. This Bill is significant, but modest, so let it be the beginning of a crusade to establish freedom as the default position across all our legislative considerations in exactly the way—with erudition and diligence, matched by experience—that my right hon. Friend illustrates.

Free speech is complex and, in the words of the hon. Member for Warwick and Leamington, may be seen as an abstraction, but if it is an abstraction, it is one that is essential for the wellbeing of our free society, for it is at the very heart of what an open society is all about. The ability to say things which, as I said earlier, alarm, disturb, or even shock, and hear things with which we disagree is the very nature of what good universities are all about. I fear that that is jeopardised by some of the thinking that permeates universities, particularly university leaders and managers. For example, Professor Ahmed also spoke of

“issues to do with race, with transgender, and with Israel and Palestine on which they were simply unwilling to say what they thought”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 13, Q22.]

people fear the consequences of doing so. It is not just those issues, although those are notable among the list of things that people now regard as beyond the scope of free and open debate.

--- Later in debate ---

[Sir John Hayes]

Yes, but the problem is that that line moves with the times, with fad and fashion, with what I described earlier as the zeitgeist. Perhaps the most chilling example of that is the case of Kathleen Stock. The hon. Lady will remember that Kathleen Stock gave evidence to the Bill Committee of which she was part. Within a few weeks, Kathleen Stock was driven out of her job as a distinguished professor at the University of Sussex by the mob, a group of students who pursued her and intimidated her and her family.

Kathleen Stock received scant support from many of her academic colleagues, although latterly the university authorities claimed they were supportive, and she was so affected and so damaged by all that that she ended up leaving the job she loved. I thought how chilling and ironic that she should have been one of the people who came to us, as Members of this House, to a Bill Committee debating this Bill, and yet just weeks later found herself a victim of the very problem she highlighted and emphasised in her evidence.

I will move fairly rapidly on to the amendments that stand in my name, Mr Deputy Speaker, because otherwise you will claim that I am making a Second Reading speech—and with some just cause.

[Dr Lewis]

rose—

[Sir John Hayes]

But before I do so, I will happily give way to my right hon. Friend.

[Dr Lewis]

My right hon. Friend is so kind. He has just given a terrible example at the extreme end of the spectrum of intimidation and restriction on free speech, but does he share my concern about the paranoid issuing of so-called trigger warnings or alerts, which are meant to protect students from hearing anything that they might find in the least discomfiting or disturbing? How does that prepare them for going out into the real world, where they are, whether they like it or not, going to hear things that are not to their liking? They will be under-prepared for that terrible ordeal.

[Sir John Hayes]

Almost every part of the canon of our great literature now seems to come with a health warning. From “Moby-Dick” to “Jane Eyre”, we are told that books are desperately dangerous for young people to read. That this is happening in schools and, amazingly, in universities is almost beyond belief. Snow has turned to ice: they are no longer snowflakes, they are in deep freeze, those people who dare not even read Austen, the Brontës or George Eliot—of those three, I strongly recommend George Eliot, by the way, but let us move on before I get into any more literary considerations.

Higher Education (Freedom of Speech) Bill

Julian Lewis Excerpts

Consideration of Lords message
Tuesday 2nd May 2023 Commons Chamber

[The Parliamentary Under-Secretary of State for Education (Claire Coutinho)]

I beg to move,

That this House agrees with the Lords in their Amendments 10B, 10C and 10D; disagrees to their Amendment 10E, and do propose in lieu of their Amendment 10E Amendment (a) to the words restored to the Bill by Commons disagreement to Lords Amendment 10.

It is almost two years since the Bill was introduced to the House in defence of the fundamental principle that students and academics should be able to express their beliefs and debate controversial ideas without fear of repercussion. We return to the House to resolve the final element on which we seek agreement: the form that the statutory tort takes in the Bill. The tort is the measure that will allow people to bring civil proceedings where they believe that certain duties in the Bill have been breached to their detriment. Since I last brought the Bill before the House, the other place has accepted the inclusion of the tort in principle. That is a huge step forward and a significant victory for freedom of speech on campus.

In February, this House voted to reinstate the tort in full following its removal in the other place. In March, the other place accepted the need for the tort but sought compromise in the form of amendments identical to those tabled by the Government on Report. That is the wording of the clause that we are now considering.

I want to emphasise that this is a significant shift in the terms of the debate. We are considering no longer whether the right to go to court should be included but what form it takes. However, I recognise that colleagues still have some concerns, and I want to reassure them that the two Government amendments will mean that the tort retains its teeth and offers a concrete means of redress for those whose right to free speech has been unlawfully infringed.

Proposed new subsection (2) will make it clear in the Bill that “loss” is not limited to pecuniary loss. That means that academics will be able to go to court if they have suffered, for example, reputational damage or adverse consequences to the progression of their career. Subsections (3) and (4) mirror amendment 10E from the other place. New subsection (5) will ensure that, in circumstances where speed is essential, a complainant can apply for an injunction where there has been an alleged breach of the free speech duties.

I turn to proposed new subsection (2), which builds on amendments 10B, 10C and 10D as voted for by the other place. On 7 December in the other place, my counterpart Earl Howe stated on Report that loss is

“not limited to pecuniary loss and could include damage to reputation, for example.”—[Official Report, House of Lords, 7 December 2022; Vol. 826, c. 195.]

Subsection (2) simply makes that clear in the Bill. The amendment therefore reflects the original policy intent. I hope that offers reassurance to the House and that hon. Members will support its inclusion in the Bill.

I turn to proposed new subsection (5), which builds on amendment 10E as voted for by the other place as now included in new subsections (3) and (4). Amendment 10E would require claimants to have exhausted the complaints schemes of the Office for Students or the Office of the Independent Adjudicator for Higher Education before they can bring legal proceedings. Some hon. Members have expressed concern that that would prevent individuals from seeking an injunction where a breach of specified freedom of speech duties has already taken place and swift redress is sought. I share the view of many colleagues that access to the courts in those circumstances is crucial.

Subsection (5) will mean that a claimant who is applying only for an injunction will no longer have to exhaust the complaints schemes first. Those claimants will therefore have direct access to the courts. It is important to allow for that to avoid delays that may cause further harm to the claimant. If, for example, a student is expelled from their course because of a free-speech issue, it may take a long time to resolve their complaint, and damages would not be sufficient. The student would be seeking re-entry on to that course to continue their studies. In that scenario, subsection (5) will allow the student to seek an injunction from the courts as quickly as possible. I am sure the whole House agrees that that is sensible and justified.

[Sir Julian Lewis (New Forest East) (Con)]

Yes, it is an excellent change. The only question in my mind is why this rather obvious feature was not included at the beginning. Could the Minister look into that and—if not now, on another occasion—throw some light on it? It was an obvious flaw in the Bill.

[Claire Coutinho]

I thank my right hon. Friend. I think the fact that we have now included that in the Bill shows that we have worked with both sides to ensure that the Bill is as strong as possible. We have always had the academics, visiting speakers and students that it seeks to protect at the forefront of our mind.

I should reiterate that the provision concerns injunctions where there has already been a breach of the relevant duties. Where there is an anticipated breach of the duties, a claimant can apply for an injunction to prevent that—that has always been the case, since the requirement to exhaust the complaints scheme only applies in the case of an actual breach. It is important to note that we believe that this exception will apply only in a minority of cases, as most claimants will not seek, or have their case result in, an injunction. Nevertheless, we are sympathetic to complainants who find themselves in the difficult circumstances in which an injunction may be required. Further to this, we expect the OfS will take into account the implications of the amendment when drafting the complaints scheme rules.

I hope that the House will therefore accept amendments 10B, 10C and 10D from the other place, and agree with the Government’s proposed new subsections (2) to (5), which are consequential upon the amendments.

--- Later in debate ---

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

The last time I was here debating this Bill, I told the Minister that it had spent more time in Parliament than any other Bill sponsored by the Department for Education since 2010. Indeed, as defenders of free speech, Members would be forgiven for thinking the Government would be determined to see the Bill on the statute book. Yet 721 days—almost two years, as you, a maths connoisseur, will appreciate, Mr Deputy Speaker—have passed since the Bill had its First Reading, and it could have been further prolonged by the prospect of legislative ping-pong with the other place.

Here we are again. This time, we have the Minister, whose remit now includes university campus activity, rowing back on the compromise reached in the Lords. I am sure that this has been pushed by the Common Sense Group. I consider myself to be a member of whatever common-sense group this place may offer, but I am unsure whether we should be here again two years on. We need not be here, but heavy-handed legislative responses to largely exaggerated social problems—I am not saying there are no problems—appear to be this Government’s general modus operandi.

[Sir Julian Lewis]

It is a very serious step for anyone, particularly a student with limited means, to go to court and seek an injunction. Surely the hon. Gentleman can see that no one will do this on a whim. They will do so only when their rights are being seriously infringed.

[Matt Western]

I have a huge amount of respect for the right hon. Gentleman, as he knows. Of course I would be concerned about the case of an individual student, but I fear more generally about the tort being a channel for more vexatious claims by well-funded individuals or organisations, and where that may take us. I will expand on that point.

Where issues arise, Ministers have shown no interest in dealing with the underlying causes. I fear that this is yet another example of Ministers leaning in and exploiting cultural divides, opting for punitive, confrontational tools such as the tort before us. I have repeatedly stated the plethora of options open to the Government: the Chicago principles, the Robert French report, Universities UK’s guidance, internal processes and the Manchester and King’s guidelines—all of which would do a better job at resolving issues whenever they arise.