Higher Education (Freedom of Speech) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, like the noble Lord, Lord Strathcarron, I have put my name to Amendment 21 in the name of the noble Lord, Lord Moylan.

Earlier, the noble Lord, Lord Wallace of Saltaire, suggested that the front page of the Telegraph, complaining about the Government backing down, was simply complaining about mere amendments to the Bill. My concern, though, is that the government amendments are in danger of gutting the Bill. I thought that the Bill’s hope was to allow a shift in the balance of power in higher education institutions away from censoriousness and towards open-minded, tolerant free speech. However, it seems to me that so much turns on enforcement because one’s rights are only as effective as the remedies available when they are violated.

Clause 4, as was, underpinned the duties designed to protect academic freedom through allowing a person to bring civil proceedings against a university or college in respect of a breach of those duties. That would mean hitting universities where it hurts: their pockets. An institution found guilty of violating academic freedom would have to fork out cash to an individual whose rights were infringed. As one academic—Julius Grower, an associate professor of law at the University of Oxford —points out,

“the threat of this alone should be enough to encourage university and college leaders to promote academic freedom.”

Let us see what we are left with following the Government’s new amendments; it is all a matter of national-level administrative procedures, where a person may now bring private proceedings only if they have previously

“brought a complaint relating to the same subject-matter … under a relevant complaints scheme”—

that is, via the Office for Students.

It is with relying on such complaints schemes that I have a problem. Anyone familiar with these schemes will know that they can be sclerotic and bureaucratic and can take months, sometimes years. What is more, they are vulnerable to political interference. A political appointee will, after all, oversee the complaints procedure of the Office for Students, so a beleaguered academic whose freedom has been violated will have to wait and wait before being able to bring a meaningful claim against the university. The amendment in the name of the noble Lord, Lord Moylan, would avoid the threat of overly litigious responses, which has been mentioned, and give us a way out. No one is claiming that these remedies will suffice to keep campus cancel culture at bay, but it is important that they will give university authorities pause while encouraging intimidated staff and students to have the confidence to voice their dissenting views.

Most of the push-back against Clause 4 has been from university vice-chancellors and those who run colleges. I absolutely agree with the points made by the noble Lord, Lord Moore, on this issue. They are a powerful, privileged lobby group of people with an interest in this. I appreciate that, if you run a college, it is your worst nightmare to have a civil tort aimed at you. I understand that. However, it is precisely those who run universities who need to feel that the pressure of this legislation is more than words because, despite all the focus on ideological trouble-makers and mischief-makers that we have heard from noble Lords today, they are presented as the villains just waiting to pounce into the civil courts and throw litigation around. This is an incredible example of straw-manning.

The very driver of the Bill is that there are real-life, concrete trouble-makers, here and now, in universities, who are targeting closing down free speech and declaring that certain views are verboten. They are not imagined trouble-makers; this is really happening now. Yet the imagined villains that have been described are those who are somehow waiting to use this clause only to make money. The truth is that, despite what the noble Lord, Lord Grabiner, suggests, vice-chancellors are not, as yet, queuing up to invite JK Rowling to speak at their universities. The suggestion that she can speak is good. Invite her, all of you—why not? A challenge.

The villains of this piece are often posed as generation snowflake, or social justice warriors who are young. Goodness knows, I spend huge amounts of my time when I am not here going around talking to students at universities and to sixth-formers. Generation snowflake does exist—and wow, do they heckle; I know all about that. But I actually do not think that they are the problem. Often the problem is university senior management, which either spinelessly gives in to the loud demands of a minority of students or leads the charge with ideological silencing policies that are adding to a censorious climate. I talked about this in my earlier speech.

The University of Sussex has been named and shamed so often in this House in relation to Professor Kathleen Stock that I have got to the point where I am feeling sorry for it. The university’s vice-chancellor is not some outlier; he is one of many. We just happen to know about Kathleen Stock because she went public. This is not some imaginary culture war. These are university managers who are hanging out to dry their own professors, academics and often students.

The noble Lord, Lord Blunkett, mentioned Professor Jo Phoenix. I have heard a variety of interviews with Professor Phoenix and have met her on many an occasion; she is battling away in an employment tribunal. It is true that it is difficult to sort out how she can get redress for her reputation having been traduced. She is taking action against the Open University and the way she was treated by the University of Essex. She said that she was shocked but not surprised that the Government had folded on Clause 4, and felt that she had been abandoned yet once more. There are many people like Jo Phoenix who are fighting on and on. Look, for example, at the files kept by the Free Speech Union, of which I am an advisory member. People think that my membership must mean something, and it does: it means I am committed to free speech. In those files there are hundreds of examples of students and academics who have been suspended by university authorities and gone through disciplinary procedures for mis-speaking and saying the wrong thing.

For me, I wanted this law to frighten university authorities —a little bit. I thought that the amendment of the noble Lord, Lord Moylan, had done a huge amount to ensure that the overchilling impact—which the noble Lord, Lord Willetts, talked about—of litigiousness everywhere could be kept at bay, while also ensuring that that tort exists. It will not solve all the problems; there is a much bigger cultural problem in relation to free speech in society. Those opposing Clause 4 are too often not loud enough to fight that culture either. They tell us that they do not need the Bill and that they do not need this clause, and that everyone here is a free speech warrior—I wish. We need this clause, and we need you all to become free speech warriors as well.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, after a lifetime in the law, I was thrilled beyond all else to hear what my noble friend Lord Moore said about the merits of the courts as he lauded the courts, independent justice and so forth. However, I profoundly disagreed with what he said in this debate, because one other thing I have learned over a lifetime in the law—actually it seems a good deal longer than a lifetime—is that any legal proceeding has real downsides to it.

Cost is the first and obvious one: all the problems outlined today about that are true in spades. Secondly, there is the delay in getting to the hearing of the action on the statutory tort, and the subsequent delay between the hearing and the result, with the uncertainty that these delays inevitably carry as to the exact position in law—assuming that there is any law in the case and that it is not just asking for a fresh, factual decision. There has been talk of delay under the statutory regulatory processes. This statutory tort has no special time limit: you can bring it for six years. And why would it end with a first-instance decision? It might wind up in the Supreme Court. Is that what you want?

The third downside during the whole process is the hassle and worry. It is a nightmare for the litigant who is dragged into the process. Therefore, unless there are the most compelling reasons, I say that it should be avoided at all possible costs.

[Baroness Altmann (Con)]

My Lords, I support many of the comments that have been made. As a non-lawyer, I think it is impressive that two senior lawyers have urged the House not to accept this remedy that would be ideal for helping lawyers. I will listen very carefully to my noble friend on the Front Bench because I think that, at the moment, we have to be very careful about unintended consequences. This is a well-intentioned, well-meaning and good Bill, and I share the determination to attempt to stop the stifling of free speech that has been going on. But the fear is that, even if a case were taken and won, it might not provide a meaningful remedy in financial terms—of course winning is fine, but if you do not get the right remedy, it has not taken you very far—for the person who is under threat, and the risk that poses to universities themselves to me suggests that there is perhaps an overreliance here on the idea, in theory, that having the ability to sue will make a huge difference. The result in practice of having that remedy could be that it has the reverse impact of what is intended.