Higher Education (Freedom of Speech) Bill (Second sitting) Debate
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Lord Beamish
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Higher Education (Freedom of Speech) Bill (Second sitting)
Lord Beamish Excerpts(3 years, 5 months ago)
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Matt Western
Under the Register of Members’ Financial Interests, I declare that my wife works at a university. I am not sure if it is necessary to declare that, but I want to put it on the record for this session.
Mr Kevan Jones (North Durham) (Lab)
Chair, this morning it was said that hon. Members have to declare their interests every time they speak. My understanding, and that of the right hon. Member for South Holland and The Deepings (Sir John Hayes), was that as long as the interest is declared at the beginning of the session that should be enough. Have the rules changed or are the right hon. Member and I just being old fuddy-duddies?
The Chair
I thank you for that plea for clarification. I am happy for any Member to make a declaration at the beginning of each session, as making a declaration every time they speak seems excessive.
Matt Western
Q
“introduction of the statutory tort will almost certainly involve universities in more legal action”.
Could you briefly expand on the consequences, both intended and unintended?
Smita Jamdar: As I understand it, the tort is designed to enable people who feel that their right to freedom of speech, as defined in the legislation, has been infringed to go to court and argue their cases. The reason why I fear that could have a number of consequences, not all of them intended, is that in order to issue a case before court you simply have to pay an issue fee, in most cases, write the particulars of claim and set it out, so you set out your case. It then locks both parties into a set of proceedings. Ultimately, you can cut those proceedings short, so you can apply to the court to have a case struck out, but that nevertheless involves a certain amount of time, expense and resource in dealing with the litigation.
In relation to the statutory tort, there is not any threshold level of harm that anyone has to show. Ultimately, for a remedy, any tort requires some form of damages, but that would not necessarily stop people from bringing claims simply to make the point. Especially where the threshold of harm is very small, it could be brought in the small claims court, where no costs are recoverable by either party. On one analysis, you would say that is at least a level playing field, but again it could mean that a few thousand pounds in every case could be spent getting rid of claims that are either very trivial or unmeritorious generally. That is the concern.
Mr Kevan Jones
Q
This morning, my right hon. Friend the Member for Hayes and Harlington (John McDonnell) raised the issue of Chinese students. We all—or I do and at least one other person in Committee does—know about the United Front activities of the Communist party on campuses throughout the UK. Sometimes they are intimidating students, and they are pushing an agenda—for example, on the Uyghurs in China—that is pro the Chinese regime. Under the Bill, I fear that that could be opened up, as my right hon. Friend raised this morning.
A group of students could on the face of it just be students, but they might have financing behind them that we and other people do not know about so that they could pursue a freedom of speech claim to push an agenda that might, for example, be in the interests of the Chinese Government. That would not only involve a lot of cost, but would clearly be financed by some very deep pockets, so it could lead not only to that agenda being pushed but to a lot of expense for the universities. Do you agree with that?
Smita Jamdar: The legislation obviously covers freedom of speech within the law, so as long as what these people were purporting to want to speak about was within the law—or at least arguably within the law, because obviously one of the things that you might wish to have the court adjudicate on is whether the speech was within the law—I cannot see anything that would stop that kind of funded litigation. Ultimately, you can try to seek clarification about where money has come from to fund litigation, but there are always ways of passing money through so that it comes from the pockets of the claimants in the first instance. So, yes, we would not necessarily know who was funding the litigation, or to what end. Ultimately, the question for the court to decide would be: was it an infringement of freedom of speech within the law?
Matt Western
Q
Smita Jamdar: There is definitely a lot of complexity here about the different roles that these bodies will play and the different routes that somebody could go through to get compensation. The Charity Commission, for example, would not normally be involved in making decisions about compensation for individual complainants; it would be looking more at whether the body in question had complied with the charity law obligations. But the other three, under the model that we have seen in the Bill, could all be involved.
Without a great deal of clarity about the relative responsibilities or indeed the pecking order—there is a rule that you cannot go to the OIA, and I think under the Bill you could not use the OfS free speech complaints process without first exhausting the internal processes of the university to challenge the decision that you are unhappy about. However, there is no such restriction when you go to court. You are free to go to court when you feel that your rights have been infringed, rather than having to go through another internal process. That said, the courts tend to encourage people to utilise internal processes first, because it is a good way of managing court resources. Does that answer the question?
The Chair
Four more Members have indicated that they want to ask a question. I call Kevan Jones.
Mr Jones
Q
Perhaps I am old-fashioned, because I do not believe that the state should intervene where it is not necessary. That is why I find the Bill, which comes from the Conservative party, very interesting. I am someone who believes that, with guidance—I am not suggesting that the existing guidance should not be used—academic institutions should be allowed to police themselves. Apart from Policy Exchange wanting to do a paper, and the examples that you have picked up, what is the extent of the problem? No one has been able to explain it to me. The Minister did not explain it on Second Reading, and you have not done so either. What is it?
Thomas Simpson: One of the things that really strikes me is often overlooked in this debate is the structural similarity between discussions around free speech and discussions around other forms of discrimination. We have rightly been thinking very seriously about racial discrimination in the past year and a half in particular, and one of the features of that debate is that people who may not themselves be subject to discrimination on those grounds are often cautious or outright sceptical that there is a problem here, whereas those who are subject to it, or at risk of being subject to it, are often very clear that there is a problem here. There is an asymmetry of perspectives.
Mr Jones
Q
Thomas Simpson: There are two problems. One is that existing statutory duties have very weak means of enforcement, so my view is that those gaps should be plugged. Two of the controversies in Cambridge in 2019 were around the dismissal of Noah Carl and its rescinding of the visiting fellowship invitation to Professor Jordan Peterson. Regardless of the merits of either case—I do not know the details of them—the astonishing thing about that was the lack of due process. The university in one case, and the college in the other case, made the decision, and there was nothing that the people involved could do, or very little that they could do: there were not ready legal means. There needs to be legal remedy.
Actually, one of the really surprising things about this discussion is that it is not an argument against taking measures, specifically in the human rights case, to guard against human rights being breached. You do not need to show that there are lots of patterns of human rights being breached.
Mr Jones
Q
Thomas Simpson: Exactly the same charges were made against the original passage of anti-discrimination legislation.
Mr Jones
Q
The issue I have with this is that, with a Conservative Government, shouldn’t we be upholding the freedoms of universities to decide what they want to do within the legal framework that is there, rather than what this is? It is going to put the director in a position whereby they will be able to dictate terms. Now, that might be okay when you have a Conservative Government, but what happens if you have a radical Government of a different persuasion that then starts saying to universities, “You will do x, y and z”? That is why I find it very difficult to understand the reasons why Conservatives are backing this piece of legislation, because interventions on that level are not what it says on the tin of conservatism.
Thomas Simpson: The legislation does define it. It says that one of the objectives is
“securing that, where a person applies”
for a given job,
“the person is not adversely affected in relation to the application because they have exercised their freedom within the law”,
referring to an earlier clause.
Mr Jones
Q
Thomas Simpson: The current situation is one in which universities mark their own homework about whether they have complied with the duty.
Mr Jones
Q
Thomas Simpson: What this creates is an ecosystem of accountability, both within the sector and external to it.
Sir John Hayes
Q
Thomas Simpson: I can give my personal experience. I am cautious about drawing too strong conclusions from that. My personal experience was that as an undergraduate from 1999 to 2002, I felt free to argue a position in my final year dissertation that I knew my markers would reject, but would recognise the quality of the work on its own merits. I had the confidence to do that. The topic was whether God existed, broadly speaking. Cambridge was a very secular faculty at that time; I was examining a recent contribution to that debate.
I had a moment about three years ago where an undergraduate student in a different department from where I work was talking to me about their political philosophy paper. They had written all the ethics of migration, which is a sensitive subject. The philosophical debate is whether countries have the right to control who crosses the borders into their country. The two positions are what is called open and closed borders. The philosophical debate is already right on the edge of the Overton window for public discourse on that topic. It became clear in the conversation that the student’s personal views were in favour of closed borders, so I said, “What did you argue for in the essay?” The student replied, “Oh, I argued for open borders. It would be silly not to do that, because that is where the lecturers were coming from.”
That to me had a sense of tragedy: here was an individual who believes something different and thought they had arguments for that, but felt that the grade they would receive on the exam would be different because of the content of what they argued for. That sense of danger about particular viewpoints is something I have sensed grow within the university over the last five or six years. I think it roughly tracks some of the turmoil we have had in the public space more generally in that time. It is mitigating somewhat now, but the patterns are in place and we need to take steps to counter that.
Sir John Hayes
Q
Thomas Simpson: I have been really inspired by the observation that Scalia and RBG, the two SCOTUS justices, used to go to the opera together. They were ideological opposites and I am sure that they even viewed the other person’s views as reprehensible at times, but there was a collegiality about their ability to do their work together. That collegiality exists in very many places, but it is under pressure, and that is the challenge that we are facing.
Sir John Hayes
Perhaps a way of resolving the difference of view between the right hon. Member for North Durham and the witness is for the witness to cite some of that evidence in writing as a follow up? I would like to know about courses that have been cancelled, stopped or never delivered, speakers who have not been invited or where invitations have been withdrawn, and funding that has not been granted on the basis of all of those things being “unacceptable”. It would be very useful if you could provide some kind of note with that as a follow up, which will hopefully allow us to move on.
Gareth Bacon
It seems to me that what you are describing the difference between mob rule and the rule of law.
Gareth Bacon
You have had your say, thank you very much.
Thomas Simpson: I am very cautious about the language I would use to describe that situation, but I want the rule of law rather than the rule of politics. That is the frank truth.
Mr Jones
Q
Dr Harris: You are right that—at least following the 1988 Act—many universities have in their statutes clauses protecting academic freedom, and that tends to be in the same wording. In terms of why we need law, again, I think we come back to the question of whether we regard and respect freedom of speech as a fundamental right. I think most people here—and, I hope, most lawmakers in a liberal democracy—would agree that it is a fundamental right and that it is fundamental to the flourishing of the individual and the running of civil society. Universities certainly pay lip service—if I can say that—and when challenged, they will always say, “Freedom of speech is our lifeblood.”
Mr Jones
Q
Dr Harris: On the definition question, I heard your questions to Professor Simpson. All rights are difficult to define, but that does not mean therefore that we are at a loss. I think the court in Strasbourg, and certainly the US courts, would disagree that freedom of speech is something that is impossible to define. I do not think the idea that we will sort of give up or backslide because it is difficult to define a fundamental right is a serious position. Yes, it is much more difficult to define than pregnancy, which is famously binary—you are either pregnant or you are not—but nevertheless, courts and legislatures are able to define more closely what a right should be.
Mr Jones
Q
Dr Harris: To go back to the point about the intervention by the state, I think it is important that we are clear what we mean by “the state”. There is obviously a role for the OfS—an administrative form of adjudication—and perhaps we can come back to that, as I think it is a very relevant issue. It is entirely in keeping with any right that it is enforced by law and that there is a remedy when there is infringement of that right. That is simply what a right is. There are a number of people who are saying, “I believe in free speech as a right,” and then they baulk when we say that it must be enforced by the courts and there must be a remedy. That suggests to me that they do not take free speech seriously as a right, which as I say, is not a credible position in a liberal democracy.
Mr Jones
Q
Dr Harris: To a degree, I agree, but the director must enforce free speech within the law, and the director will have no power to say what the law is. If the director misdirects him or herself as to what the law says on free speech, it can be challenged in the courts—it would be an error of law.
On the question, I think that, ultimately, what will happen is that there will be definition and enforcement by the courts of those duties and rights created by the Bill. It is correct to say that there is a role for an administrative body, the OfS. That is a trade-off that it is often necessary to make. It is worth while to have a cheap, informal and quick form of adjudication. The idea that every dispute—especially for students—should be taken to court, is simply impractical. Even though there can be drawbacks with administrative adjudication, it is essentially a stopgap so not everything has to go to the courts. Ultimately, the free speech that we are talking about here is defined and enforced by the courts. It is free speech within the law. We should all be happy with the idea that free speech is a right enforced by the courts.
Matt Western
Q
Dr Harris: Every MP must decide for themselves how happy they are to turn a blind eye to infringement of a fundamental right and how happy you are to pay that political price.
Mr Jones
No, it’s conscious bias—[Laughter.]
Dr Harris: Yes, absolutely. For instance, in the determination of curriculum content, that is something where there absolutely must not be imposition of bureaucratic standards. The example that I cited in the written submission was that of the University of Oxford’s music faculty, which decided to decolonise its curriculum. I should say that that is a legitimate exercise of academic freedom, but it then said, “Members of the faculty must not disparage the curriculum.” Obviously, curriculums are changed by disparaging them—that is how they came to be decolonised in the first place—so we cannot stop the process.
There needs to be, and I think the Bill could include, a right of consultation. It is academic good practice anyway, and it slightly demeans universities that they need to be told that, because it should be part of academic ethics. There is also the right to criticise one’s institution. That is part of the international law standard of academic freedom. It is embedded in a number of university statutes. Whatever happens, the standard adopted by the Bill should be at least what is already best practice in the sector. I do not think it should go beyond that.
Lloyd Russell-Moyle
Q
Dr Harris: Yes—