Higher Education (Freedom of Speech) Bill

Lloyd Russell-Moyle Excerpts

Consideration of Lords amendments
Tuesday 7th February 2023 Commons Chamber

[Claire Coutinho]

Having spoken to many academics and people in universities at the moment, I firmly disagree. They are the people who would like that sort of protection. They think it would give them a legal backstop to the duties that we are placing otherwise in the Bill. Let me reassure the hon. Lady that the Government do not want providers being taken to court without good reason and being forced to defend themselves against unmeritorious or vexatious claims. We do not expect that to happen. The tort has always been considered a backstop.

The vast majority of complaints should be resolved through the new, free-to-use Office for Students complaints scheme, or through the Office of the Independent Adjudicator for Higher Education. In practice, we expect its use to be relatively rare, but it is crucial because it will offer complainants an opportunity to bring a case where they feel that their complaint has not been resolved to their satisfaction by the OfS or the OIA. It will be useful on the rare occasions where a provider, for some reason, fails to comply with the recommendations made by the OfS or the OIA.

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

The problem with the tort clause is that it also applies to student unions and student associations, which were always free to invite people that they wish to invite along. Conservative clubs only invited Conservative MPs. They did not have free speech in the club per se; they were Conservative-minded and they did not necessarily invite Labour-minded people. But within the student union and the university as a whole, students were free to have clubs and societies that might be Labour clubs, Marxist clubs, further right clubs or whatever mix they wanted. That is enshrined in the Education Act 1994 and the judgment of Baldry v. Feintuck. The danger is that the tort affects those clubs and will have a chilling effect on student unions, which might say that it is easier for those clubs not to exist, and they will therefore fall out of regulation—

[Mr Deputy Speaker (Sir Roger Gale)]

Order. If the hon. Gentleman wishes to make a speech, he should put his name in. That was not an intervention.

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[Matt Western]

I talk to members of all university communities of course, as the right hon. Member would expect: I talk to the senior leadership teams, UCU members, Unison members, those who are non-affiliated, and also students. I listen to all points of view across the piece. I am sure that occasionally the right hon. Member did not say what he would have liked to have said in a Cabinet meeting when in power, but that is the nature of how society works and there should be no difference between what happens on campuses and in wider society.

Anyone would think that the Minister’s colleagues have come to the fair conclusion that the Bill is more about political posturing than delivering on students’ priorities. Let me be clear for the record: this Higher Education (Freedom of Speech) Bill and its passage through both Houses is a product of a Government who are out of touch, out of ideas and out of steam. It has been a masterclass in how not to pass legislation.

[Lloyd Russell-Moyle]

Members opposite say the banning of the Christian union was a disgrace, but is there not a real danger with this Bill that all societies will be banned from campus because the university will not then have to worry about regulating them, so it will exacerbate the problem, not help it?

[Matt Western]

I thank my hon. Friend for his important intervention. He is absolutely right, and he and many others on our side made that point repeatedly in Committee about the unintended consequences of the Bill, which would have a chilling effect. Those are the thoughts of Lord Willetts and many others in the House of Lords as well, who made it clear that that would be the result, particularly among smaller institutions, that may be less familiar to certain Members across the House, which do not have the resource or capacity to be able to administer these measures.

Ministers are choosing to ignore the widespread condemnation of the tort from Members in this place, Lords, sector representative bodies, students, trade unions and academics. They are seemingly prepared to carry on regardless. As recognised by so many, the tort is a clause primarily in search of a problem, but perhaps that is the point for Ministers. It is otiose; that is to say it serves no practical purpose or result.

Put simply, the objections to the tort raised in the other place are damning. I am well aware that this Government do not value expertise or experts, but, my God, they should. Their predisposition towards certain right-wing think-tanks has cost this country dear, and in terms of legal matters, or indeed the tertiary education landscape, the intellectual heavyweights in the other place, comprised of former vice-chancellors, current chancellors, former Supreme Court justices, ex-Masters of the Rolls and many former Education Secretaries and universities Ministers, have a brain quotient that is certainly higher than two. Their collective experience dwarfs that of the current Education team, and for that matter my own experience. It is for that reason that I take very seriously the warnings and advice given by peers in the other place, and, importantly, not just from one party but from across the House. There is perhaps no other clause in the Bill that provokes such widespread condemnation as clause 4, allowing individuals and groups to sue universities for losses resulting from a university or student union failure to secure their free speech duties.

Speaking of brains, Lord Willetts, a former Minister for higher education, believes that the risk of legal challenges would be terrible for freedom of speech in our universities, as people are likely to keep their heads down, not invite speakers, lie low and stay out of trouble. In other words, the prospect of vexatious litigation will have unintended consequences.

Lord Grabiner, an eminent jurist, went further and feared that the clause could be used by

“well-heeled trouble-makers for whom the costs issue would be of no concern at all.”—[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 709.]

That may all be well and good for well-funded free speech litigators, perhaps with the unlimited support of the Free Speech Union, but for small institutions and higher education providers in particular, it will be crippling. He poses the question we all want the answer to:

“Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?”—[Official Report, House of Lords, 7 December 2022; Vol. 826, c. 210.]

Perhaps the Minister can give us a satisfactory answer today.

Even if we agree with the principle of the statutory tort, it is totally unworkable in its current form. The ex-Master of the Rolls, Lord Etherton, identified two glaring deficiencies in the tort as it stands. First, it is not clear what level of loss or damage is required for a successful claim. Secondly, it is also not clear what category of persons is entitled to make a claim. Lord Etherton concluded that

“it is extremely difficult to see what kind of order a court could make in practice that would deal with the situation that has arisen in relation to the non-securing of freedom of speech.” —[Official Report, House of Lords, 14 November 2022; Vol. 825, c. 706.]

That leaves the tort as both undesirable and unworkable.

As well as being undesirable and unworkable, the tort has the potential to be actively harmful to the promotion of free speech on campus and hence totally counter- productive, as I was saying a moment ago. The Russell Group has reiterated its warning that:

“Managing the potential for litigation would…likely create significant administrative and resource burdens without adding to the enhanced protections for free speech introduced by the new OfS complaints process.”

In other words, we could have the worst of both worlds: no liberalising effect on free speech on campus, but with all the associated costs of legal action.

One student union I heard from recently informed me that there is currently no budget allocated for paying for legal action. Legal advice would need to be paid for out of its reserves. To make matters worse, it claimed that it would also be impossible or difficult to obtain insurance for such legal action. In a sense, therefore, student unions will be doubly bound, being required to build up large enough reserves in preparation for fighting such lawsuits, while also having to engage in expensive legal battles. Using that money will inevitably detract from student welfare budgets, SU facilities and the much-valued nature of campus culture. I return, once again, to the ever-prescient question posed by Lord Grabiner in Committee in the Lords:

“Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?”

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That is why I wish to finish by appealing to those on the Opposition Front Bench. If ever, in some distant day, they take power in this country, they should not undo this legislation, and this tort in particular, because they need to look behind them. Those on the Labour Front Bench are the hosts to a new totalitarian idea, which is well represented tonight. The hon. Member for Warwick and Leamington (Matt Western) is a decent liberal. He may think that he is just defending liberalism here, just protecting diversity, and that there is no danger from the ideas behind him, but this rapacious spirit, this intolerant totalitarian idea, will come for him, too. Those on the Labour Front Bench should support the Bill, with the tort included, to ensure and defend free speech, and ultimately to save themselves.

[Lloyd Russell-Moyle]

I draw the House’s attention to my entry in the Register of Members’ Financial Interests. I receive donations from the University of Sussex to provide services for some of its politics students, and I received donations at my first election from the University and College Union. I am also a trustee at the University of Bradford student union, and we had our trustee board meeting today.

One worry for student unions, such as the one that I sit on in Bradford, is how we would manage this kind of law. Only a few years ago, the Prevent laws caused us real problems in relation to inviting speakers along to the university. I remember once trying to bring in a speaker who had served time in prison. We wanted him to talk to the students about the folly of his ways—the stupidity of radicalisation. The very best person to speak to students who are likely to be radicalised is probably someone who has been radicalised and has come out the other side. The paperwork that had to be completed for this speaker meant that the students from the Islamic society felt that it was just too complicated to do, so they backed off and self-censored.

The problem with the Bill is that all such student societies will self-censor. Students will say, “It is too complicated to invite a speaker in. It is too risky for student unions,” so they will just not be invited. There will be equal speech because there will be no speech. That is the reality of some of these clauses, particularly the tort element because it puts liability not only on trustees like myself—I am big enough and can take it—but on student trustees who are finding their way in the world. To put such liability on them so early on is rather dangerous.

The protections are already there in previous education Acts. We heard about the 1986 Act, as well as the 1994 Act, which requires student clubs to receive equal and fair funding across the board, no matter what their political persuasion. Those Acts have been tested in the courts. The settled situation is that if a Conservative society in a university student union wishes to register and receive money, it must be given the same opportunity to do so as any other society. If a society is prevented from doing so, it is likely to win in the courts under current legislation.

The problem with including a tort that does not require an element of proven financial damage is an ambulance-chasing solicitors charter. That is the reality. Any single grievance that does not have to demonstrate a financial impediment can of course whip up cases. Most student unions, like my own, which broke even just this year—in fact, we had a slight deficit because we are still recovering from covid at the University of Bradford, and student union activities were reduced and are only just coming back to full force—do not have the finances to fight these things, so they will settle.

[Lia Nici (Great Grimsby) (Con)]

I am somewhat confused, because the Bill is not designed to limit freedom of speech; it is actually there to protect it and to ensure that people are not cancelled—there have been some very high-profile cases of that. It seems to me that the hon. Gentleman and some of his colleagues misunderstand what the Bill is about.

[Lloyd Russell-Moyle]

I sat on the Bill Committee and heard the evidence. Some, which I supported, talked about the unnecessary nature of the Bill, much said it would be unhelpful, and a lot said it would impose a chilling effect. I have no problem with a requirement for free speech. I have no problem with, for example, allowing the Office for Students to determine these matters. In fact, I would like an appeals process to be part of that, which would strengthen the provision by allowing people to seek resolution. Instead, the evidence we heard on the tort aspect was that it would be chilling. Rather than take the risk, people would not do anything.

We know that that has happened before. Many Acts have been passed in this place that have had a chilling effect, meaning that people do not take action. I want to see vibrant debate in my universities. That has always happened, such as when University of Sussex students in the 1970s blocked the American ambassador from coming on campus until he condemned the war in Vietnam. Those activities are also about free speech; students’ ability to express their heartfelt beliefs and desires must be allowed as well, but such activities would be prevented under the Bill.

That is why I am against the Government’s move to reject the Lords amendment, although I welcome some of the other moves, particularly on non-disclosure agreements, that we put in initially. I wish the Government would come together with us to remove the tort clauses and to provide other appeal processes, so that people can seek proper justice that is not just about financial recompense.

[Sir John Hayes]

I refer hon. Members to my entry in the Register of Members’ Financial Interests in relation to the University of Bolton.

Learning is, through exploration, the discovery of truths. Of equal importance to the answers learning provides are the questions it poses. For the emergence of understanding is a process, not a moment—a journey, not a destination. Such is the delight of being inspired to know more that it provokes an open-mindedness to all kinds of possibilities.

That is the spirit that speakers across this House have enjoyed and recommended to us, and yet across universities that spirit is being frustrated by the kind of intolerance that, rather than opening minds, aims to close down debate. This Bill must provide a significant shield and a sword to those who are determined that universities remain places where ideas are discussed freely and can be tested through critical analysis.

W. B. Yeats said, “Education is not the filling of a pail, but the lighting of a fire.” We must not quench the fire of learning because we regard some ideas or views as contentious or controversial. Some may alarm. Some may cause offence. Yet without the ability to alarm and to disturb and to shock, there is no ability to inspire and to move and to enthral. They are two sides of the same coin.

The practitioners of intolerant identity politics have successfully cancelled a litany of students and academics who dared to espouse particular understandings of race, gender and sex—understandings, by the way, that are commonly held by our constituents—taken as read by most of the people we represent.

Those without wealth or influence to resist have too often been left at the mercy of the mob. It is a bitter irony that one academic who came forward to give evidence when we discussed the Bill in Committee, Kathleen Stock, was subsequently driven out of her job by a combination of militant students and weak-minded academics who refused to support her. She told us, along with my friend Arif Ahmed, that there is a climate of fear and a culture of silence, as academics self-censor for fear that what they say might leave them at the mercy of university authorities that use all kinds of techniques to silence them. So, this Bill is critical and the tort is critical to its effect.

[Lloyd Russell-Moyle]

Will the right hon. Gentleman give way?

[Sir John Hayes]

I happily give way to the hon. Gentleman, who served on the Committee.

[Lloyd Russell-Moyle]

When we served on the Committee, did we not agree that one thing this Bill lacked was security of tenure for academics—very rare now—which would provide a bulwark against a chilling effect? Is that not something we could seek agreement on?

[Sir John Hayes]

I agree with the hon. Gentleman on that, but, having declared my interest that I am employed at the University of Bolton, I had better not make too forceful a point about it.

Many more academics we do not know of will have faced similar pressures, in untold everyday stories of students and academics that, whether through fear or otherwise, go unreported or unresolved. That is why it is so important to reject the Lords amendment that would abolish the new statutory tort proposed in the Bill as it was originally drafted. It is disappointing that the academic establishment in the other place made a case against that—disappointing, but unsurprising, because of course these people look after their own. I am very pleased that, as my hon. Friend the Member for Devizes (Danny Kruger) said, the Minister has resisted those calls. She has shown determination, insight and, I must say, a degree of courage in doing so, because it is easy to roll over when the big beasts in the other place roar in defence of the academic establishment.