Higher Education (Freedom of Speech) Bill

Lord Collins of Highbury Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, I was not going to declare an interest until I heard the contribution from the noble Lord, Lord Cormack, which reminded me that I too had been a visiting parliamentary fellow at St Anthony’s, which I enjoyed very much. I was a joint fellow with a Conservative Peer and we planned a schedule of lectures with competing arguments, so I understand the value of challenging thought and ideas—it is absolutely what makes for progress.

As we heard in the excellent introductory speech from the noble Lord, Lord Wallace, the Bill has had a fragmented and bumpy ride through Parliament. Not many Bills would be introduced in May 2021, and complete their Committee stage in September of that year, and then finally get to Report and final stages on 13 June this year. What a long ride it has had.

The Bill is primarily searching for a problem. Sadly, my noble friend Lord Blunkett could not be with us today, but last week he put it to me that it is all about gesture politics. He said it is “Putting up an Aunt Sally that doesn’t really exist and knocking it down again”. What is the evidence? We have heard views about that. The report of the Joint Committee on Human Rights into free speech at universities in 2018 found that there was no major crisis of free speech on campus. As the noble Lord, Lord Storey, highlighted, the Office for Students said that 0.21% of invitations were rejected. We have heard a lot about the chilling effect, and it has lots of implications; whether it be for financing, through the number of foreign students, or for the number of grants, I have no doubt that it influences the response of institutions.

The noble Baroness, Lady Stroud, referenced the UCU evidence. What I found really interesting about the UCU briefing on this matter is that, when I was at university, academics talked about tenure guaranteeing freedom of speech and guaranteeing academic freedom. Now when a student goes to university, half their teachers are on short-term contracts and likely to be sacked for all kinds of reasons. If that is not a chilling effect on academic freedom, I do not know what is. Let us make sure that we look at the evidence.

My noble friend Lord Blunkett also said to me that this is a distraction from what really matters to the sector and to students. Three out of four students are currently worried about managing financially, one in four have less than £50 a month to live on after rent and bills, and 5% of students are using food banks. In my opinion, that is the real crisis in our universities. Of course, the challenges faced by students reflect what is going on in wider society. As my noble friend Lady Thornton said in her opening speech, unlike the Conservatives over the years, Labour has always championed free speech. It was a Labour Government who introduced a law guaranteeing freedom of expression.

What have we got here? We have a Bill that has gone through the Commons and that will create a director for freedom of speech and academic freedom on the OfS board, as well as a new OfS registration condition on free speech, strengthening an existing duty known as Section 43. It also introduces a statutory tort, giving private individuals a right to seek redress for loss incurred as a result of a breach of Section 43, and so-called enhanced contractual protections for academics with regard to academic freedom. It is very difficult to see that given the stats which I have just mentioned. The Bill also has the addition of a duty to disclose overseas gifts and contracts affecting freedom of speech—which no doubt has persuaded some noble Lords to support it.

Across the House, throughout this debate, I have heard the serious reservations of noble Lords about the unintended consequences of these proposals. I listened with great interest to the contribution of the noble Baroness, Lady Deech, whom I do not often agree with but on this one I completely agree with her. It is those unintended consequences that we should be most worried about. The Bill reflects a top-down, one-size-fits-all approach, which the noble Viscount, Lord Eccles, referred to. It demonstrates a weakness at the heart of the Government and their misplaced lack of trust in the academic community.

I hope the noble Earl will address the concerns raised in the debate, which are shared not only by noble Lords across the House but by the sector. We need to know how the Bill will interact with existing legislation and other duties which relate to free speech and academic freedom, including, as my noble friend highlighted, the proposals to reform the Human Rights Act. Ministers have claimed that the new statutory tort would be a backstop, but what safeguards will there be to ensure that it does not lead to universities having to defend themselves against vexatious and frivolous claims brought by anti-vaxxers, Holocaust deniers and hate preachers?

We have also heard, from the right reverend Prelate the Bishop of Coventry, about the interaction between the role of the OfS free speech complaints scheme and the director for freedom of speech and academic freedom, and how they will interact with existing ombudsman and, as the noble Baroness, Lady Deech, said, the Office of the Independent Adjudicator for Higher Education. We also believe, on these Benches, that there should be a requirement for the new director for freedom of speech to consider competing freedoms when investigating free speech complaints.

The noble Lord, Lord Johnson, raised overseas donations —a late addition to the Bill. As the noble Lord said, will the Government ensure that duties on overseas funding are targeted with risk-based exemptions and proportionate reporting? What sort of extra duties will be placed on universities? We need to have a proper assessment.

I have no doubt that we will return to these issues in Committee. I repeat my noble friend’s assertion: we will be tabling amendments to ensure that an independent appointments procedure is used for the post of director for freedom of speech, and also to ensure it is not a party-political appointment. I do hope the Minister will respond to her questions, specifically those about the post being advertised, the job description, and the requirements of the person specification for the job, which does not seem to address what we are being told the job is about. Certainly, with a closing date of 13 July, will we see this appointment being made before parliamentary approval?

Labour will also seek to broaden the definition of academic freedom, to include for example, criticism of institutions, conducting research and joining a union—something that I think is fundamental to a free and democratic society—and will also propose, as my noble friend said, a sunset clause to the legislation.

There is one thing I wanted to return to in more detail. If there is a problem—and I have heard from noble Lords and I accept there are issues to address—is this legislation the best way to deal with it? Surely, adopting and promoting best practice in our universities and with academics and teaching staff is the real answer. We have a sector that leads the world, and I understand the view of Universities UK that it is important that additional legislation and duties placed on universities that seek to address the small number of incidents that we have heard described this evening need to be proportionate. I have heard and read that Universities UK has stated its willingness to work with the Government on the Bill to demonstrate their members full and firm commitment to freedom of speech, which I think I have heard from across this House. But what I find most disappointing about the Government’s attitude is they have not really examined the vast array of really good practice. How do we encourage good practice? The Manchester guidelines, the Chicago principles or even Robert French’s independent review of freedom of speech in Australian higher education—to name but three—show countries around the world have similar issues, but the point is how they go about addressing them.

If the Government were really interested in promoting and protecting freedom of speech and academic freedom, they would seek to encourage this approach across the sector, as I think was referred to by the noble Viscount, Lord Eccles. It would be far more effective and would not have the unintended consequences that this proposed legislation would have. Such approaches would go a long way to fostering the healthy culture of debate that we all want on our campuses. We have to understand that, sometimes, institutions and student unions will get it wrong. That is the nature of debates on the parameters of free speech, but it is a small price worth paying for a collective and more consensual approach to protecting freedom of speech on campus.

I have heard about the competing pressure on freedom of speech, safe places and respect. As a student 45 years ago—or maybe longer, I suppose—as a young gay person trying to study in that environment, actually, disrespect did turn into hate speech, and hate speech turned into violence. Do not think of words as simply a painful experience, if they encourage violence. That is what we experienced with Section 28—words that said that you cannot preach something in schools because it is a danger to children. That was in Section 28, and it is what we must guard against. Respect is about respecting all; it is not just about a difference of opinion. I want debate but I also want to protect individuals.

Higher Education (Freedom of Speech) Bill

Lord Collins of Highbury Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

[Baroness Smith of Newnham (LD)]

My Lords, I wish to speak briefly in my own right, as opposed to speaking for my noble friend Lord Wallace, apart from one point about Amendment 1. The point of adding “within the law” is to fit with new Section A3, but that would be subsumed by the amendments in the name of the noble and learned Lord, Lord Hope of Craighead. The idea of defining freedom of speech is highly desirable, and that amendment appears to do the job.

I have some difficulties with Amendment 28, and it would be interesting to understand what the movers of that amendment mean in proposed new subsection (2). The relationships between this legislation and the Equality Act, and this legislation and other pieces of existing legislation, need to be thought about. I have some concerns about what the ramifications of proposed new subsection (2) would be.

[Lord Collins of Highbury (Lab)]

My Lords, this has been a fascinating debate, and one we could continue for some time, because it is about trying to reach a consensus about concepts—I have my name down to Amendments 3, 11 and 30—but it is also about how we talk about free speech in universities and about academic freedom. There has been confusion in the debate about those two things. One of my amendments tries to say that we should not forget academic freedom and how important it is to university life, and asks about the constraints on it, which are not necessarily all the things that we have been talking about. In my experience, academic freedom can be constrained by economic factors and income streams that universities might have. Research can be restrained for those sorts of reasons, and academics who followed a particular route of research have been constrained by those other pressures.

The noble Lord, Lord Mann, is absolutely right. He and I have shared the same experience: political views can be unpopular, and some of the demonstrations that we have faced have been quite violent. The noble Lord, Lord Alton, has sadly left the Room, but we had a debate on Friday on his genocide Bill, as well as a debate on Thursday about Ugandan Asians. I remember standing up and defending the need to protect Ugandan Asians and facing a quite violent reaction from people. It was not limited to the streets; it was in other institutions, even in my own trade union and my own party.

As a lifelong trade unionist—I am not making a Second Reading speech, but talking specifically about my amendments—I have long experience of how politicians want laws to change culture, which is impossible. The most successful progress in industrial relations has been made not by legislation but by consensus, agreement and discussion.

--- Later in debate ---

[Earl Howe (Con)]

I take the noble Lord’s point entirely. I think that I said that the definition I referred to was non-exhaustive. It is quite deliberately non-exhaustive, because it is a definition that we felt was appropriate for the purposes of the Bill. I suppose I could sum up the issue by saying that we believe there is a consistency between the Bill and the ECHR, even if there is not total congruency.

I emphasise that the duty in the Bill to take reasonably practicable steps means that providers, colleges and student unions can take account of all their legal duties on a case-by-case basis. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that.

Amendment 11 would provide that a non-disclosure agreement with a provider does not mean that members, staff, students or visiting speakers could not speak freely. There is an exception for intellectual property. I very much support the spirit of this amendment—in particular, victims of sexual misconduct and harassment should never be pressurised into keeping silent. The previous Minister for Higher Education, Michelle Donelan, strongly supported work in this area. She launched a voluntary pledge in January this year, in conjunction with Can’t Buy My Silence and universities, to encourage providers to commit not to using NDAs to silence victims of complaints of sexual harassment, abuse or misconduct, and other forms of harassment and bullying. To date, 74 higher education institutions and three Oxford colleges have signed up to this. The Government are working with Can’t Buy My Silence to call out those who have not yet done so.

[Lord Collins of Highbury (Lab)]

Does the noble Earl not think that that is a good example of where good practice can be adopted not by legislation but by employers agreeing that something is not appropriate? Can he not proudly point to that as somewhere the Government have intervened and change has happened without the need for legislation?

[Earl Howe (Con)]

We certainly hope that this will gain traction. I agree that in most circumstances it is better to encourage voluntary action, as long as it works. This is very much a work in progress.

We have also asked the Office for Students to create a new registration condition to ensure that it properly tackles sexual misconduct. This would have real teeth and would mean that providers could be sanctioned with penalties, suspension from the register or even deregistration. This follows the publication by the OfS of a statement of expectations for providers in this area.

I make the point that we are the first Government who are prepared to tackle this issue. I shall continue discussing with colleagues on both sides of the House how best we can tackle sexual harassment and misconduct in our universities. I therefore have no difficulty in committing to taking this matter away and looking at it further.

--- Later in debate ---

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Smith, very briefly, and to speak to Amendment 24 in the name of the noble Lord, Lord Wallace, to which, as the noble Baroness noted, I attached my name. I guess this comes from personal experience, because as leader of the Green Party I only once had security guards shadowing my every move. That was at the 2015 general election on a visit to Exeter University. Our very new, very young Young Greens were suddenly told that they had to arrange security and had to find the money to do so. I think the reason may have had something more to do with the fact that, the previous week, Nigel Farage had visited the university under the same circumstances and the university felt that it had to apply the same rules to both. That is how the situation arose, but I am none the less acutely aware that that was a considerable impediment.

If the cost of security is laid on student bodies particularly, that may stop an event going forward. However, I admit some sympathy also with the earlier intervention in this group asking whether this is really the sort of level of detail the House of Lords should be debating, which goes back to the whole question about the Bill.

[Lord Collins of Highbury (Lab)]

My Lords, I welcome these amendments, because they probe the practical implications of these clauses. The noble Lord, Lord Grabiner, raised the point about the code of practice, and I was going to ask the Minister exactly how the code of practice in new Section A2 would cover the circumstances in relation to these amendments.

At the end of the day, as the noble Lord, Lord Mann, says, organising meetings has all kinds of implications for universities and colleges. Health and safety is a critical issue for the organisation of meetings, and the timing of meetings has employment issues, relating to staff and things like that. There is a whole range of practical issues that could result in having to say to the organisers of a meeting that they cannot have their meeting on that day or in that place.

The Minister may say that the code of practice referred to in new Section A2 talks about the procedures to be followed in connection with the organisation of meetings to be held on the provider’s premises. I want to know about the status of the code of practice and how the office of free speech will look at it. Are we going to end up with universities producing a code which fits all their requirements—health and safety requirements, employment law conditions, staffing issues, security issues and so on—then being tied up with people challenging it through the complaints process, saying, “They said that thing about health and safety as an excuse to ban us having a meeting on the premises.” I have heard it before. I have heard people say, “What has health and safety got to do with it?” or “Why should a maintenance staff member tell us to get out at 8 o’clock when I want to continue this speech and have this meeting?” There are practical implications.

How does a university know that the code of practice it adopts according to new Section A2 will meet the requirements? Will draft codes be circulated? What sort of advice and guidance will universities get—or are the Government simply going to say that this is all about what is reasonably practicable? I have heard those words many times in different contexts, particularly in terms of employment law and conditions. I hope that the Minister can reassure us on these probing amendments. Universities are independent bodies and should be able to manage their own organisation without the interference of outside bodies. I think this is a step too far.

[Earl Howe (Con)]

My Lords, the group of amendments to Clauses 1 and 3 tabled in the name of my noble friend Lord Willetts and spoken to by the noble Lord, Lord Stevens, seek to give higher education providers and student unions the flexibility to move events to alternative premises but not cancel them. The noble Lord, Lord Mann, has also tabled Amendment 6 to the provisions concerning premises.

Under the Bill as drafted, providers, colleges and student unions will already be free to move events to alternative rooms, should that be appropriate. The main duty of taking reasonably practicable steps to secure freedom of speech is linked to the provisions that are the subject of these amendments—those in proposed new Section A1(3). This means that the duty is to take reasonably practicable steps to secure that the use of premises, and the terms on which such use is offered, are not based on the ideas, beliefs or views of individuals or groups. The duty to take reasonably practicable steps therefore means that there is already flexibility.

In any event, a provider, college or students’ union is not required under the Bill to allow the use of their premises at all times and in an unlimited way. It is open to them to offer particular rooms for use by event organisers at specified times. As regards Amendment 6, Section A1(3)(a) refers to “any premises” but could refer to “premises” without changing the effect. It should also be noted that the relevant body can place conditions on the use of rooms.

In this context, it might be helpful to touch specifically on the point raised at Second Reading by the right reverend Prelate the Bishop of Coventry regarding concerns about the use of faith spaces. I was very happy to meet him some days ago to discuss this. The example given by the noble Lord, Lord Mann, of having an anti-Israel talk right next to Jewish premises, touches on a similar point. Sections A1(3) and (4) on the use of premises essentially replicate the wording of the Education (No. 2) Act 1986, referring to beliefs among other things in that context. As I said earlier, the provisions link back to the main reasonably practicable duty in subsection (1), so it is not an absolute requirement. I think that was an initial cause for concern on this point, so I am happy to clarify that. In fact, the “reasonably practicable” steps wording enables providers to continue to designate spaces for use by faith groups without any obligation for the provider to open those spaces up to other groups, whether or not they have conflicting ideologies.

Under the reasonably practicable steps duty, it would be legitimate for a provider not to offer a particular faith space to any group that wants to hold an event, but to offer another suitable space, thereby upholding the freedom of speech duties and preserving the integrity of the space set aside for the faith group. The legislation enables providers to respect the religious views of those with designated rooms, taking into account the duties under the Equality Act, while still complying with the freedom of speech duties. To pick up a point made by the noble Lord, Lord Grabiner, we anticipate that the Office for Students will publish guidance for providers on how to comply with the duties. We can certainly discuss this with the Office for Students to ensure that it covers this issue, which I hope will provide noble Lords with further reassurance.

I just say to the noble Lord, Lord Collins, that providers are already required under the Education (No. 2) Act 1986 to have a code of practice regarding freedom of speech. The Bill strengthens that requirement. Providers will now need to include a statement of values in their codes of practice that clearly sets out the importance of freedom of speech. Providers should be setting the tone and expectations campus-wide so that everyone is confident to express their lawful views and challenge received wisdom, even if their views are unpopular. Codes of practice will also need to set out the criteria that providers will use to make decisions about the use of their premises for events involving potentially controversial views, as well add the criteria for when exceptional circumstances may apply regarding the payment of security costs. The Bill strengthens the duty on providers already set out in the Education Act 1994 so that all students, not just those who are members of student unions, are made aware of the duties and the code. Once again, the Office for Students will give guidance on this.

Higher Education (Freedom of Speech) Bill

Lord Collins of Highbury Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

My concluding comment is simply about that hierarchy. I understand why the noble Lord seeks this, but it would mean that the public sector equality duty would be different for higher education providers compared with other public bodies, which would create additional complexity. It would create a hierarchy. Other public bodies will be concerned with protecting Article 10 rights, and they would then require further amendments to the respective laws that govern them. Our guidance will, we hope, be superseded by the guidance produced by the Office for Students to accompany this Act when it comes into force. I hope that the guidance will clarify the “particular regard” that Amendment 35 seeks to add in.

[Lord Collins of Highbury (Lab)]

This has been a really informative debate. Fundamentally, the noble Baroness, Lady Falkner, has set it in the proper context. I am not sure which hat she was wearing but whichever it was, this has been put in context; it is about balancing duties.

I must admit that, the more we discuss the clauses in this Bill in detail, the more I think about unintended consequences. If we have existing duties and responsibilities, why have they not worked? Why is it that Governments immediately resort to legislation rather than thinking about what is actually going on and asking what powers that they have could be better utilised? On the first day in Committee, a number of noble Lords made precisely that point. They highlighted where they think that things have gone wrong, but did not see this legislation as being particularly the right mechanism for putting it right. This debate has been extremely useful.

I must admit that I found the contribution from the noble Lord, Lord Mann, enlightening. My tendency is to look at my own personal experience at university—many, many years ago. There was quite a lot of hostility and demonstrations, and certainly some of the extremists that the noble Baroness, Lady Fox, talked about—maybe even the noble Baroness herself, as I suspect that we were both at the same university—frequently tried to stop me speaking on behalf of the Labour Party. By the way, I like the idea that I have the luxury of speaking in a personal capacity; maybe we should tell Conservative Central Office that that is the case—though I am tempted not to do that.

At the end of the day, what we have here is agreement on fundamental principles but disagreement about how you best achieve them. Invariably, there are competing interests at stake when speakers are invited to our campuses but, as the noble Lord, Lord Mann, said, freedom of speech is not a trump card. I make that point to the noble Lord, Lord Moylan. He may be able to qualify his words but, fundamentally, as the noble Baroness, Lady Falkner, said, those words do put it into a hierarchy, which I think is particularly dangerous.

Whether we like it or not, universities have a broad range of responsibilities, and not only to academic staff and students; they are also big employers and so have a duty to other staff as well—particularly when it comes to statutory legislation such as that on health and safety, which is something they must take into account when exercising these responsibilities.

As the noble Lord, Lord Mann, said, students have a right not to be harassed or subjected to hate speech. Most importantly, as he said, they have a right to protest and to say that the opinions being expressed by somebody who has been invited to their university are abhorrent. When I was at university, extremist religious faith groups were saying that my sexuality represented an evil thing that needed to be banned and stopped. Fortunately, we have moved on and do not allow that in quite the same way. If a religious fundamentalist came here, I would expect to have the right to say that I found their opinion abhorrent. The noble Lord, Lord Mann, was absolutely right, and the case that he used to illustrate this is an important one.

When I looked at the Bill’s Committee stage in the Commons, I saw that points were made, with reference to the evidence sessions, about how the Equality Act could be used:

“Professor Stephen Whittle from Manchester Metropolitan University acknowledged as much in the Bill Committee, recognising that the Equality Act would afford protection only if the speech were directly addressed to the complainant. That is important because front groups such as Hizb ut-Tahrir, which is not a proscribed organisation but which often espouses antisemitic views, could come on to campus under the guise of freedom of speech.”—[Official Report, Commons, 13/6/22; col. 80.]


There is real concern here about how we must have that balancing act and ensure that people are protected. The example from the noble Lord, Lord Mann, about a family member of someone who suffered the consequences of terrorism, is a really important one.

At the end of the day, we have to try to take into account the sentiments contained in Amendments 29, 32 and 44 and ensure, as the noble Lord, Lord Smith, said, that we recognise those balancing responsibilities. As the noble Baroness, Lady Falkner, said, it is important that this proposed law does not inhibit the balancing of those responsibilities. I certainly have a lot of sympathy for the amendments in the name of the noble Lord, Lord Mann.

[Earl Howe (Con)]

My Lords, as we have heard, this group brings together a series of amendments that seek to clarify in the Bill how its duties will interact with other duties and responsibilities.

Amendments 29 and 44 in the name of the noble Lord, Lord Mann, seek to ensure that providers and student unions balance their duty to take steps to secure free speech with their duty of care to students, staff and members. Amendment 32 would add this consideration to the duty to promote in Section A3.

I am grateful to the noble Lord for raising this important point and listened with care to the examples he gave. He is quite right that providers have a duty of care to their students under common law, as well as obligations to their staff under employment law. Student unions also have responsibilities to their staff under employment law. It is of the utmost importance that they can fulfil these obligations, providing an environment in which students, academic staff and members can thrive and taking reasonable steps to promote their health, safety and welfare.

As I mentioned, the noble Lord cited a number of examples to illustrate his arguments around the duty of care, one of which was a speaking invitation issued to a convicted terrorist. Inviting a convicted terrorist would likely require consideration under the Prevent duty in addition to the wider points he made on duty of care. I will cover the Prevent duty in more detail when I cover Amendment 69, if he will allow.

--- Later in debate ---

[Lord Willetts (Con)]

My Lords, I will briefly make three comments on this debate; I realise that I will not occupy the same moral high ground as most of the participants in the debate so far.

The reality is often that co-funding, with public money and private money, is going into research projects which are believed to be of value for the British economy. I will give your Lordships a simple example. You may find that some public funding is going into a wind tunnel and some Rolls-Royce money is going into it so that it can research the functioning of a jet engine and improve Rolls-Royce’s capacity to be a market leader in jet engines. A lot of that goes on. Indeed, in a different part of the woods, we are told that more of that should go on and that we should be thinking more fully about how we use publicly funded research to promote business investment. There are lots of reasons for being wary but those type of relationships exist, and if anything, are being encouraged, and would not be possible under the provisions here. That is my first point.

Secondly, the American pressure on us with regard to the research we conduct and then publish, is because by and large they think we are very naive about what they call dual-use research of concern. They think that we publish lots of stuff which is the equivalent of publishing nuclear physics in the early 1930s. There is a lot of pressure from them for us to publish less, and they think we are naive about some of the possible implications of the research. If we are to have research partnerships with these international partners, if anything, the pressures are the opposite of the ones we have been hearing this afternoon.

My third point is really a question for the Minister. This is an issue which raises another angle where there is concern about this legislation. It is marvellous to have a Minister from the Department for Education as well as a Minister from the Cabinet Office. Several provisions of the Bill relate to the activities of BEIS and our research effort. The research activities of universities are not part of the DfE, and it would be good to be reassured that, on many provisions of this legislation which affect research capacity, we will have the voice of the business department, which is the ultimate responsible body, and that there has been suitable liaison across departments so that implications for research and innovation are properly considered as part of our deliberations.

[Lord Collins of Highbury (Lab)]

Does the noble Baroness not wish to speak?

[Baroness Smith of Newnham (LD)]

I think I have said everything that needed to be said from these Benches.

[Lord Collins of Highbury (Lab)]

I was tempted to declare my own interest as an assistant general secretary of a trade union that used to commission research. Once I knew the question and its answer, I would commission the research. There is that political side; social science is often involved in that sort of thing.

This has been a worthwhile debate. I am pretty certain that this Bill, or even this debate, is not the right place for these amendments.

The noble Lord, Lord Willetts, raised some fundamental points. One of my responsibilities is as the shadow FCDO Minister. In global research, how research—particularly medical research—can be innovative, and who controls and pays for it, is an interesting question. I certainly do not relate that to academic freedom; that is a different, commercial issue.

The noble Lord, Lord Stevens, made the excellent point that, if you are going to do research in a particular medical area, you are not going to be bound by employing someone who has no interest in pursuing that line of inquiry. For me, whenever these sorts of questions come up, the interesting thing about the sort of research done by my noble friend Lord Sikka is that the key is always transparency. Whenever a piece of research is published, I want to know who has funded it. I want to know who is ultimately responsible. To me, that is absolutely the key to this issue.

I was going to ask the Minister about impact; the noble Lord, Lord Moylan, raised this. Students Organising for Sustainability asked whether these duties would present a conflict between some universities’ health departments—at Imperial, for example—that have funding conditional on not recommending big tobacco in their careers service? That relates to advisers and freedom of speech. It would be interesting to hear the Minister’s view on that in relation to the debate on these amendments.

I have promoted debates in the Chamber on the broader issue of commercial research, particularly about who at the end of the day owns and controls the—I have a mental block.

[Baroness Thornton (Lab)]

Copyright? Intellectual property?

[Lord Collins of Highbury (Lab)]

Yes. Then we get into a much bigger question, which for me is the most important political question. I know my noble friend has also entered into debates on that issue, including on TRIPS and stuff like that.

I will be interested to hear the Minister’s response to this point. Personally, I do not think that these amendments are in the right Bill or the right place.

[Earl Howe (Con)]

My Lords, this group of amendments relates to impartial research funding. Amendment 34 in the name of my noble friend Lord Moylan would introduce a new duty to require higher education providers to take reasonable steps not to refuse to grant funds for research because of a recipient’s lawful principles or political opinions.

Amendments 45 and 46, also tabled by my noble friend, seek to make clear, first, in respect of donations and sponsorship to registered higher education providers and, secondly, in respect of funding through UK Research and Innovation, that the donor, grantor or provider may never restrict the freedom of speech of those working under the funding. Amendment 53 in the name of the noble Lord, Lord Sikka, is about the awards of grants for academic research.

--- Later in debate ---

[Earl Howe (Con)]

I would hope that a rugby club would not be responsible for inviting somebody to talk about gender politics.

[Lord Collins of Highbury (Lab)]

The Minister is completely wrong about that. It is highly likely that they would, because there is a highly controversial issue around gender, sex and sport. I think he does not fully understand the range of issues that can be addressed by a huge range of societies in the university community.

[Earl Howe (Con)]

I bow to the noble Lord’s superior knowledge on this. If noble Lords will allow, I will conclude.

I mentioned the possibility of a monetary penalty, which was raised by the noble Baroness, Lady Garden. The power to impose a monetary penalty is based on the existing enforcement regime for higher education providers and is intended, obviously, to encourage compliance.

New Section 69B will also require the OfS to maintain and publish a list of student unions at approved fee cap providers. This will make it clear which student unions the OfS has been informed by its providers are subject to the duties in new Sections A5 and A6. It will also require those student unions to provide the OfS with information it may require for the performance of its functions. These are new regulatory functions, intended to ensure compliance by student unions with their new duties. Together with Clause 3, this clause will ensure that freedom of speech is protected by not just higher education providers but student unions.

Higher Education (Freedom of Speech) Bill

Lord Collins of Highbury Excerpts

Committee stage
Monday 14th November 2022 Lords Chamber

[Baroness Smith of Newnham (LD)]

My Lords, we on these Benches share the view that we do not need the Bill, as held by the noble Lord, Lord Blunkett, the noble Baroness, Lady Chakrabarti, and, I believe, the noble Duke, the Duke of Wellington—I apologise if I have taken his name in vain.

In order not to engage in Second Reading again, I will start with the point from the noble Lord, Lord Cormack: with any piece of legislation, ask yourself whether it is necessary. There seems to be a strong sense that there are serious questions about Clause 4 among all speakers across your Lordships’ House, from noble and learned Lords to academics to retired politicians—or rather retired MPs: people in your Lordships’ House may or may not think of themselves as politicians; on the Cross Benches they probably do not, but on some other Benches “retired MPs” may be the appropriate phrase. But there is almost unanimity across your Lordships’ House in opposition to Clause 4, or at least in doubt about it. The only Member who seemed keen to try to support Clause 4 was the noble Baroness, Lady Fox, but she did not seem to have been quite persuaded by it. Could the Minister be persuaded to think again? As noble Lords, particularly the noble Lord, Lord Grabiner, have eloquently pointed out, this clause is not fit for purpose or desirable.

It is not clear that the clause will even work in its own terms. The noble Lord, Lord Triesman, sought to point out that academics are particularly mischievous and that they can debate until the cows come home. However, whether you hang a portrait or how you design your gardens in an Oxbridge college are not things that we would normally take to litigation. That might be the sort of activity that engages academics, but this debate is much more profound. Here I declare my interest as a Cambridge academic; I declared it at the start of Committee stage, but I reiterate it on the record as we are currently in the main Chamber. What we are talking about here is not the sort of debate that people might have over dinner, or in the Oxford Union or the Cambridge Union; these debates are about very serious issues of freedom of speech. Yet it is not clear how Clause 4 will, in any way, strengthen freedom of speech, because, as we have heard from several noble Lords—in particular, the noble Lord, Lord Willetts—there is a danger of a chilling effect. The Government have not adequately thought this through, including the law of unintended consequences. Already, with something like the Prevent requirements, academics or students considering whether they will invite people to speak will think, “Is it worth the effort? Is it worth going through all these procedures to invite a controversial speaker?” Very often, the answer will be no. Bringing in the civil tort will only make that danger even more severe.

Yes, we need a way of ensuring that free speech can be guaranteed, but as the noble Lord, Lord Johnson of Marylebone, suggested, surely that is the job for the regulator. Trying to bring in lawyers is a recipe for even more hours of debate than an economics faculty or the synagogue of the noble Lord, Lord Triesman, might engage in. It will be costly, but will it benefit anybody apart from the pockets of the lawyers? It is not clear that it will.

This clause seems to be deeply unwelcome, and it is unclear that it is necessary. Can the Government think again and consider removing it by Report stage?

[Lord Collins of Highbury (Lab)]

My Lords, I start by saying that this has been an excellent debate. One of the excellent things about this House is that the debate has not been partisan at all—and certainly my contribution this afternoon will not be partisan.

I will share some thoughts about lawyers and courts. As a lifelong trade unionist, I have of course tried to resist courts intervening in industrial relations. This is for good reason, because when Governments have tried to use courts in industrial relations, it often ends in failure. The biggest change over the years—certainly in my experience—has come from the adoption of best practice, codes of practice and the introduction of a regulator. That has resulted in far more progressive and better change than when the courts were used as a weapon. I think that this clause is exactly about that.

The noble Lord, Lord Johnson, is quite right. Whatever we think about whether this provision will resolve some of those vitally important issues, the fact is that we have a well-established regulator, and this Bill proposes to strengthen that regulator. As I was listening to the debate, I thought about the one that we had on the Trade Union Bill. The Government at that time, when highlighting the problems in industrial relations, decided that the main focus—although I opposed that Bill at the time—should be on how we strengthened the regulator. Certainly, in terms of the certification officer, those powers were strengthened.

It is a fundamental question. If the Bill has a purpose, it is about change, and its main focus has been on how we make the regulator more effective. What the debate has clearly established is that this clause will have the opposite effect: it undermines the regulator and the changes that we are trying to make. The words that kept coming to my mind in Committee and at Second Reading are those of the Minister, who said that the provisions of Clause 4 were a backstop. I fear that it will be the first step and will result in very well-funded litigation, not to put right a wrong, change a practice or improve the situation, but simply to have a go and make a point. We call it “vexatious”, but that is the climate that we are in danger of empowering, if we are not careful.

--- Later in debate ---

[Earl Howe (Con)]

I am grateful to the noble Lord. I shall reflect on that point and write to him, if he will allow me to clarify the Government’s position in that way.

I have already set out how we envisage the tort will operate, so I will not repeat that. Suffice to say that, in the view of the Government, the statutory tort will provide an important legal backstop by giving individuals a specific right to bring a claim before the courts. This could include a number of people in different situations. For example, and purely by way of example, it could include students expelled from their course because of their views; organisers of an event that is cancelled, having incurred costs in the process; and a visiting speaker disinvited at the last minute, with the accompanying media furore and perhaps damage to feelings and reputation. There are other instances I could give. Noble Lords who wish to remove this clause need to be comfortable about removing a backstop provision that could offer a remedial route to certain individuals, such as those I have mentioned.

I hope I have been able to set out why we believe that this clause fulfils a duty that we surely owe to those who believe that their legal rights in this area have been infringed.

[Lord Collins of Highbury (Lab)]

A number of noble Lords referred to the chilling effect and the Minister did not really cover that point. He keeps talking about this being a backstop, but if its effect is to prevent the invitations and stop the debate, what does he think about that chilling effect? It has completely the opposite effect to what he has been speaking about.

[Earl Howe (Con)]

The point the noble Lord, Lord Collins, makes goes hand in hand with the point that I would like to reflect upon. The issue raised by a number of noble Lords was the sequence of events: whether the Bill should make clearer that the complaints process should have first been exhausted before a recourse to the courts is made. So if I may I will consider the noble Lords “chilling effect” point in that context, as well as in the context of the overall clause, and write to noble Lords accordingly.

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

My Lords, I thank the noble Lord, Lord Johnson, for raising this issue, because it is an important thing we should debate. Fundamentally, it is about balance and being proportionate—and, as we have heard, there is also the business case about overreliance on a single source of income. Certainly, if foreign students are coming from one country, as the noble Baroness, Lady Smith, said, clearly there is a risk factor in that.

I will start by saying, as I think the noble Lord, Lord Johnson, was saying too, that foreign students are an important element of our soft power. We should not underestimate how making our universities open to overseas students is an important part of the three Ds of our integrated policy of defence, diplomacy and development. Okay, I hear what the noble Lord, Lord Grabiner, said: often, the people whom we are attracting are a growing part of the wealthy side of society and instead we should be focusing on other areas, particularly in Africa, where we should be encouraging more students. However, when I was a student, I found that many of the overseas students that I became friends with subsequently became leaders of countries and influencers of countries, and we should not underestimate that. So I start by saying that I am very much in favour of supporting overseas students and that universities should continue to encourage them—especially from China. I do not think we should be debating that Chinese students are a bad thing. The Chinese Communist Party is a bad thing, but not Chinese students—we should absolutely be committed to that.

As I said at Second Reading and in other debates, the key to addressing the influence of income on free speech is transparency. I am sympathetic to the idea that there should be a requirement to say just what proportion of income is coming from which areas—that is absolutely right—but I also support the view of the noble Lord, Lord Willetts, that in introducing that element of transparency we should not place burdens on institutions that could inhibit academic research and the commitment to follow through those income streams. When we look at other countries, certainly when it comes to reporting requirements, we are talking about a much higher level than those currently envisaged by the Government.

So it is very important that we address these issues, but I share the concern of the noble Baroness, Lady Smith, that this Bill is not necessarily the appropriate place to do it.

[Baroness Barran (Con)]

My Lords, I would like to address the group of amendments relating to overseas funding.

Amendments 63 and 64, tabled by my noble friend Lord Johnson of Marylebone, seek to amend the transparency measures concerning overseas income received by higher education providers. They would add tuition fees to the categories of overseas funding in scope and require the OfS to consider whether a provider or college was “overly reliant” on funding from a single country of origin.

Increasing awareness of foreign interference risks in higher education is of course vital. That is why we have already added measures to the Bill that will require the OfS to monitor the overseas funding of registered higher education providers and their constituent institutions so that it can assess the risk that the funding may pose to freedom of speech and academic freedom in the provision of higher education within a given institution. However, we have ensured that the scope of these measures is proportionate to the risk, in order to ensure that our universities remain a place where freedom of speech can thrive.

The Government consider that these further amendments are unnecessary and potentially overly bureaucratic. Providers are already required to submit data to the OfS on course fees by broad domicile, broken down by UK, other EU and non-EU. In addition, international student numbers are reported to the Higher Education Statistics Agency and published online, broken down by country of domicile and by provider. This means that information about international tuition fees is already available to the OfS. If the OfS considered that a provider was overly reliant on student tuition fees—the noble Lord, Lord Collins, talked about the business case for overseas students—it could take steps if it thought that this would threaten the financial sustainability of the provider. That is included in the registration conditions that providers must already comply with. The OfS can issue sanctions for breach of these conditions.

Amendment 65, in the name of my noble friend Lord Willetts, seeks to increase the financial threshold for reporting required by higher education providers under Clause 9. This would require that no less than 1% of the total income of a higher education provider would fall to be reported, thereby reducing the burden of reporting on providers.

For many large providers, 1% of their total income could represent tens of millions of pounds, but I am sure noble Lords will agree that, for example, £1 million would be a very significant amount of money if an individual member of the academic staff received it as a research grant. Amendment 65 would mean that such instances might not fall to be reported.

The aim of Clause 9 is to increase the transparency of overseas funding. The OfS will require providers to supply information to them on relevant overseas funding. Relevant funding is defined as certain specified types of funding received by the provider, a constituent institution or a member or members of staff from a relevant overseas person, where that exceeds a threshold—to be set out in legislation—within a period of 12 months. The current intention is to set this at £75,000 in a 12-month period for providers and colleges.

We recognise that the risk of undue influence arising from smaller amounts of overseas income is likely to be lower. We have therefore ensured that the scope of these measures is proportionate to the possible risk to freedom of speech. We believe that the intended threshold of £75,000 for providers and colleges is appropriate, as it will strike the right balance by increasing the transparency of significant transactions without creating undue bureaucracy by requiring the reporting of smaller transactions that are less likely to pose a risk. The information required is further narrowed in scope, as “relevant overseas person” is a limited category and there will also be countries that are excluded from this provision that will be set out in regulations.

We take the impact on the higher education sector seriously, which is why the Bill includes the measures that I have just described to reduce the level of reporting required. We are therefore ensuring the proper targeting of the measure to the risk to freedom of speech, and that the burden on providers will not be too great.

I now turn to Amendment 66 tabled by the noble Lord, Lord Wallace of Saltaire, and spoken to by the noble Baroness, Lady Smith of Newnham, which seeks to clarify why students’ unions have been included within the scope of the overseas income measure in Clause 9. The overseas funding measures in the Bill seek to increase the transparency of overseas donations and other income received by higher education providers, their constituent institutions and students’ unions to better enable the OfS as a regulator to understand the possible extent of financial leverage from a foreign source, which may influence behaviour to pose a threat to freedom of speech and academic freedom. The information reported will enable the OfS to monitor and report on any sector trends and patterns.

In order for these measures to have the maximum intended effect on countering the threat of foreign interference in higher education and to increase public confidence in the sector, we considered it vital that the overseas funding duties extend to students’ unions, as other measures in the Bill do. Students’ unions across England are in receipt of a variety of overseas income every year and there is diversity across students’ unions in the ways in which they are funded. Information published by the Charity Commission demonstrates that a large number of students’ unions are very reliant on the annual donations and legacies that they receive. Therefore, it would be remiss not to include students’ unions in Clause 9.

The scope of the measure—noting in particular the threshold amount, which we anticipate will be set at an appropriate level for students’ unions—means that the burden on those unions will not be too great and will ensure the proper targeting of the measure to the risk to freedom of speech. I trust I have given reassurance that Clause 9 as drafted offers sufficient and proportionate protection against undue foreign influence on freedom of speech and academic freedom within higher education.

--- Later in debate ---

Moved by

[Lord Collins of Highbury]

70: After Clause 11, insert the following new Clause—
“Expiry
(1) This Act expires at the end of the period of three years beginning with the day on which it is passed, subject to subsection (4).(2) A Minister of the Crown may by regulations made by statutory instrument repeal any of the provisions of this Act after one year from the day on which it is passed if the Minister is not satisfied that the provision is working as intended.(3) Before the end of the period of three years beginning with the day on which this Act is passed a Minister of the Crown must lay before Parliament a written report on the effectiveness of the provisions of the Act.(4) A Minister of the Crown may by regulations made by statutory instrument—(a) provide that this Act does not expire in accordance with subsection (1), in full or in part, subject to approval by resolution of both Houses of Parliament, or(b) make transitional, transitory or saving provision in connection with the expiry of any provision of this Act.(5) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

[Lord Collins of Highbury (Lab)]

My Lords, it is appropriate that the last amendment of the day should be considered as a sunset clause. Amendment 70 would introduce a sunset clause, ensuring that it expired after three years and providing for clauses to be removed if they are not working. I stress that the purpose of this amendment is not to deny the importance of freedom of speech, academic freedom or even whether the Bill is necessary; it is to give the Government the opportunity to gather more evidence on whether the Bill is necessary and whether its provisions are fit for purpose.

Unfortunately, in the debates we have heard—not only today, but throughout Committee—a number of noble Lords expressing opinions about whether the Bill is really necessary. The Bill is there and the Government will pursue it, but I want to give all those noble Lords who have some concerns about it—and particularly about the evidence on which it is based—the opportunity to support this amendment so that, with the support of the academic institutions themselves, we can review the practical elements of the legislation and see how well it is working. This will give the Government the opportunity to have second thoughts, even after the Bill passes all its stages.

I hope that the Minister will give it some consideration; I suspect that she will not. The noble Earl, Lord Howe, said at the beginning that he has been in listening mode. The important thing is that we are at one on the importance of academic freedom and freedom of speech. We are concerned about some of the unintended consequences of the Bill and how they may actually have the reverse impact. This is why something like a sunset clause may be necessary, so that we do not bake into statute something that will end up denying freedom of speech rather than supporting it. I hope that noble Lords will give due consideration to this. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

I will speak briefly to Amendment 70 in the name of the noble Lord, Lord Collins of Highbury, who has just introduced it very clearly, and to which I attached my name. In doing so, I am prompted to declare an interest. The noble Baroness, Lady Smith, made a declaration of interest that made me wonder whether I should do the same, so I will take this last possible opportunity to declare that I receive support from King’s College London in the form of an intern—I now have a second excellent intern. I am not sure why that should be declared, but it is now on the record.

The noble Lord, Lord Collins, set out the case for the amendment very clearly. Like many speakers today, I remain convinced that it would be better not to have this Bill at all. But given that we have it, to add a sunset clause—a checkpoint written in the Bill to see what is happening—is unarguably a good idea. To stress the point that this is not a party-political matter but purely a practical, sensible and helpful suggestion to the Government, I will quote the noble Lord, Lord Grabiner, from earlier in this debate:

“Often, the legal process, especially a new-fangled one, confuses and undermines well-intentioned purposes. It is also often the case that the introduction of lawyers and the courts merely fuels increased tension.”


There have been huge concerns expressed around this point about the Bill. This amendment is just a simple and practical measure to say, “Let’s have a checkpoint. Let’s not have another version of the Dangerous Dogs Act; let’s make sure we’re not making things worse by adding this simple provision, Amendment 70.”

--- Later in debate ---

[Baroness Barran (Con)]

My Lords, the amendment tabled by the noble Lord, Lord Collins, also in the name of the noble Baroness, Lady Bennett of Manor Castle, would make the Bill subject to a sunset clause, with the Act to expire three years after the date of enactment, unless a report is made to Parliament and regulations are made to renew the Act. It would also allow Ministers to remove provisions of the Bill one year after enactment if they were not working as intended.

My noble friend Lord Deben shared his concerns about the speed of the appointment process. Sadly, I do not possess a magic wand in relation to Defra appointments, but I shall share his concerns with my noble friends in that department. I also take his serious point that, as someone once said, sometimes when it is slow it is because it is being carefully considered, and sometimes it is just slow. We shall leave it to your Lordships to judge.

We do not think it would be right or appropriate to include a sunset clause in the Bill. Equally, it would not be right to allow Ministers to remove provisions by way of regulations after only one year, when Parliament has only recently approved the Act and there will not have been enough time for the Act to bed in. I should note in this context that it will take time to implement the new statutory regime, with a need to make a number of sets of regulations; to appoint the new director for freedom of speech and academic freedom, as the noble Lord, Lord Adonis, reminded us; to draft guidance; to draft and consult on changes to the regulatory framework; and to set up the new complaints scheme. One year would certainly be insufficient to see the effect of the Bill on the ground. A sunset clause for a whole Act would be very unusual, and we see no reason why this Bill should be treated differently from other pieces of primary legislation.

[Lord Collins of Highbury (Lab)]

I thank the Minister for her response. I am glad that my amendment has at least given the noble Lord, Lord Deben, the opportunity to be supportive of the Government on this occasion.

Just to pick up on some of the points that have been made, from what the Minister said, it sounds as though, if the appointments process for the director for freedom of speech is anything to go by, it will be at least three years before we see this legislation actually being implemented—and who knows what will have happened in three years’ time?

The important thing that I wanted to stress in moving this amendment is how important evidence-based legislation is. Certainly, a lot of concern has been expressed throughout Committee about the lack of evidence on some of these points. However, I hear what the Minister says, and I am glad that the noble Lord, Lord Deben, has been able to make that contribution at long last. I beg leave to withdraw the amendment.

Amendment 70 withdrawn.

Higher Education (Freedom of Speech) Bill

Lord Collins of Highbury Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Baroness Garden of Frognal (LD)]

My Lords, from these Benches we very much welcome the government amendments in this group. We consider that “opinions” is a much safer term than “beliefs or views”. We also welcome Amendment 7, which aligns freedom of speech more closely to other conventions. I am afraid that I do not have the legal knowledge to discuss the views of the noble Lord, Lord Moylan, on whether paragraph 2 should be there.

However, we support the other amendments in the names of the noble Lord, Lord Collins, and the noble and learned Lord, Lord Hope. We are also very pleased that the Minister has signed Amendment 6, which should help to protect freedom of speech and well-being on our campuses. We realise it is unlikely that the other amendments in this group will go any further; meanwhile, we thank the Ministers very much for listening.

[Lord Collins of Highbury (Lab)]

My Lords, I thank the noble and learned Lord, Lord Hope, for introducing this group. When we were discussing these points in Committee, what prompted me to support him was how we should try to future-proof this legislation, particularly where there was speculation about human rights definitions and things that might lead to other changes. I therefore also welcome the Government’s own amendments. They are extremely helpful, and we welcome them in relation to this issue. I must admit that I am quite happy to support a third way. It has been part of my political tradition to do so, so I will support that.

I come to Amendment 6 in my name. We had an extremely positive exchange about how we protect these freedoms and stop a nasty practice of non-disclosure agreements inhibiting free speech. I am extremely pleased that the Government have signed the amendment and agreed to support it. I also appreciate all the discussions I have had with the Minister, whom I thank very much.

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

My Lords, I would like to address the group of amendments concerning the free speech duties. As your Lordships have already noted, we had an important debate on these issues in Committee which sought to bring clarity and consistency both to the definition of freedom of speech and what the Government mean by “within the law”. Our amendments seek to address the first of these points. I hope that my remarks will cover the latter. I am disappointed that my noble friend Lord Moylan still thinks we are muddled on this issue; I will do my best to bring a little clarity.

Amendment 7 amends the provision in new Section A1(11), which currently sets out what freedom of speech as referred to in this Bill includes. The amendment refers to the

“freedom to impart ideas, opinions or information …by means of speech, writing or images (including in electronic form)”.

This wording is derived from Article 10(1) of the European Convention on Human Rights, which is also used in the Bill of Rights Bill. This was a particular concern of the noble and learned Lord, Lord Hope. There is also a reference to Article 10(1) of the ECHR as incorporated by the Human Rights Act 1998. This has been carefully drafted to reflect the fact that the freedom of speech in this Bill is a broader concept than freedom of speech in Article 10 because students’ unions are not public authorities and are not subject to the ECHR.

The other amendments are consequential. For example, they refer to “ideas or opinions” in certain provisions rather than “ideas, beliefs or views”. That is to reflect Amendment 7 and is not intended to change its meaning. I will comment on the phrase “within the law” when I respond to the noble and learned Lord’s Amendment 10.

As your Lordships are aware, these amendments are in response to Amendment 1, which was moved and eloquently explained by the noble and learned Lord, Lord Hope of Craighead. This is similar to our amendments, but we have some issues with it. The wording is from the Bill of Rights Bill, but this amendment would cause difficulties if inserted into this Bill. First, as I have already said, it is not right regarding the application of Article 10 to students’ unions. Secondly, it refers to the “right” to freedom of speech, which would lead to new Section A1(2), a duty to take steps to secure an individual’s freedom of speech—by which we mean the exercise of that freedom—instead being a duty to take steps to secure an individual’s right to freedom of speech. This is not what is intended in the Bill.

Regarding consistency with the Online Safety Bill, that Bill does not refer to freedom of speech but rather to the wider concept of freedom of expression. My sense was that the noble and learned Lord is not planning to press this amendment. I hope he will accept that the government amendment answers his concerns and those of the other signatories to Amendment 1.

Amendment 10, also tabled by the noble and learned Lord, seeks to define “within the law” as regards freedom of speech under the Bill. This Bill does not change an individual’s right to freedom of speech. That right is established in common law and under Article 10 of the ECHR, as incorporated into UK law by the Human Rights Act. People are free to say what they want, so long as their speech is not prohibited under the law. As the noble and learned Lord explained, the right to freedom of speech is a qualified right, meaning that, for example, there is no right to incite racial hatred or to harass others. I am aware that my noble friend Lord Moylan is concerned that freedom of speech is perhaps becoming more qualified by some of the restrictions set out in Article 10(2) but that is beyond the scope of this Bill which does not change how Article 10(2) applies.

This Bill does not change what is or is not lawful under UK law; that is for other legislation to do. The reference to

“freedom of speech within the law”

in new Section A1(2) simply means freedom of speech that is lawful. It might be helpful to note that we do not understand there to be a legal duty

“to respect the rights of others”,

as specified in the amendment.

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

I will be very brief. There is a danger of this debate widening out too far. In Committee, I advocated to the Minister the UNESCO definition of academic freedom. Of course, there is always that confusion between academic freedom and freedom of speech. I was assured by the Minister in Committee, so I was satisfied with what the Government were saying. I hear what the noble Lord says about quality, but standards of teaching and research are a very important element of our universities; we should not forget that. We should not promote one argument and then undermine the very thing that our universities are very popular for globally. We do not support this amendment. We agreed with what the Minister said before and I look forward to his response today.

[Earl Howe (Con)]

My Lords, as we have heard, the amendments in this group relate to the important issue of academic freedom. I turn first to Amendment 4, tabled by the noble Baroness, Lady Fox of Buckley, which seeks to amend the definition of academic freedom set out in new Section A1 to make it explicit that academics can voice opinions about the institutions where they work, without fear of adverse consequences.

In responding to a similar amendment tabled in Committee by my noble friend Lord Strathcarron, to which the noble Baroness also put her name, I clarified, as the noble Lord, Lord Collins, kindly mentioned, that the definition of academic freedom as currently drafted already covers the questioning and testing of received wisdom, and the putting forward of new ideas and controversial or unpopular opinions. This speech is not limited to particular subjects, so it would include speech concerning the institute at which an academic works. The Bill will therefore already protect the freedom of academics to put forward opinions about the curriculum content adopted by their provider or third-party organisations with which the provider is affiliated.

As the noble Baroness highlighted, there is a reference in the explanatory statement to the UNESCO recommendation. It may be helpful for me to put on record that the Bill as drafted protects academics in a number of the ways listed in that recommendation. Specifically, it protects the rights to freedom of teaching and discussion; freedom in carrying out research, and disseminating and publishing the results thereof; freedom to express freely their opinion about the institution or system in which they work, as I have already said; and freedom from institutional censorship. However, the Bill does not cover conduct which is not speech, such as the act of affiliating with or joining an organisation.

The noble Baroness also referred to the 2015 case of Kharlamov v Russia, and I can confirm the essential features of the case that she set out. Mr Kharlamov was a physics professor who said during a conference that he was unhappy with the nominations process for candidates to the academic senate. The university sued him for defamation. The European Court of Human Rights in due course found in his favour on the basis that the Russian courts failed to fairly balance the relevant interests and establish a pressing social need for protecting the university’s reputation over the claimant’s freedom of expression. I hope that, in the light of what I have said, noble Lords are reassured that this amendment is not in fact needed.

Amendment 5 tabled by the noble Lord, Lord Wallace of Saltaire, seeks to probe the workability, as he put it, of new Section A1(7)(b) in Clause 1. Taken at face value, it would amend the definition of academic freedom so that it would no longer specify that an academic should not be put at risk of a reduced likelihood of their securing promotion or different jobs at the provider. I realise that it is a probe. It is correct that this provision is not included in the existing legislative definition of academic freedom in the Higher Education and Research Act 2017 and the Education Reform Act 1988. However, we want to be clear in the Bill that academic staff should be protected in as expansive a way as possible—so not only from losing their job or privileges, but from being less likely to secure promotion or a different job at the provider. If we do not specify that these are also covered, there may be only partial protection. A person might not be fired but might be held back in their career, by not being promoted or given another role at the provider because of something they have said.

As I mentioned, the noble Lord wants to know how this provision will work in practice. An academic will of course need some evidence to support a complaint that they have been wrongly held back because of their views. They may have been told by a colleague the reason why they have not been promoted. There may be notes from an interview that suggest why this is the case. There may be an email which makes this clear. In the face of such evidence, the question will then be whether the provider has failed to comply with its duties under the Bill. I note the noble Lord’s point about the OfS guidance and I will ensure that the OfS also does so. This is the way that evidence in employment law is often presented. It is not new, nor is the concept of protection from not being promoted, since that can be a matter leading to constructive dismissal, which has been a feature of employment law for some time.

I hope that this explanation reassures the noble Lord that this is an important aspect of academic freedom in the context of freedom of speech, and that he agrees that the provision will protect academic staff to the fullest extent.

--- Later in debate ---

Moved by

[Lord Collins of Highbury]

6: Clause 1, page 2, line 34, at end insert—
“(10A) In order to achieve the objective in subsection (2), the governing body of a registered higher education provider must secure that the provider does not enter into a non-disclosure agreement with a person referred to in that subsection in relation to a relevant complaint made to the provider by the person (and if such a non-disclosure agreement is entered into it is void).(10B) In subsection (10A)—“non-disclosure agreement” means an agreement which purports to any extent to preclude the person from—(a) publishing information about the relevant complaint, or(b) disclosing information about the relevant complaint to any one or more other persons;“relevant complaint” means a complaint relating to misconduct or alleged misconduct by any person;“misconduct” means—(a) sexual abuse, sexual harassment or sexual misconduct, and(b) bullying or harassment not falling within paragraph (a).”Member’s explanatory statement
This requires the governing body of a registered higher education provider to secure that the provider does not enter into certain non-disclosure agreements (and as a result of new section A4 of the Higher Education and Research Act 2017 inserted by section 2 of the Bill this will also apply to the governing body of constituent institutions).

--- Later in debate ---

The introduction of a tort to duplicate what the OIA or the OfS already does would be a major additional burden for universities and the courts, although a great financial advantage to lawyers. The point made enthusiastically by the noble Baroness, Lady Fox, is that this would hit universities in their pockets and make them suffer. This is unnecessary. A combination of the regulation we already have and instructive, capable and braver leadership by our vice-chancellors and universities is what we need. I therefore strongly support the amendment to remove Clause 4.

[Lord Collins of Highbury (Lab)]

My Lords, I have a confession to make: when I spoke at Second Reading, I expressed the opinion that this Bill was not necessary. However, during the process of Committee and the dialogue and discussions that I have had with many noble Lords—by the way, I have no interest as a university leader to declare—I was persuaded that there is an issue to address.

My experience as a trade union official over many years is that, when you want to change behaviour and culture, you do not do it through the courts. You do it through the very mechanism that the Bill proposes: improved and strengthened regulation, and a strengthened code of practice. That is what the Bill attempts to do and I have been convinced that it is necessary from hearing the arguments and all the cases and evidence given. This is not a binary choice: I now accept that the Bill is necessary. However, in my opinion, keeping Clause 4 would undermine the very thing the Bill is seeking to achieve. If you support the Bill, get rid of Clause 4, because it would undermine the very thing we are seeking.

Our approach, throughout Committee and Report, has been not to make this a partisan or party-political issue. We have heard the debate and listened, and I have accepted the need for the Bill. That is why I signed the amendment of the noble Lord, Lord Willetts. I expect and hope to divide the House, because this clause needs to go.

[Earl Howe (Con)]

My Lords, I begin by expressing my thanks to noble and noble and learned Lords from all Benches of the House for their thoughtful and helpful contributions to this debate, all of which I listened to with great attention. I think it would be helpful to the House if I begin my response by considering the tort in the round, before turning to the amendments tabled to this clause, bearing in mind the nature of the debate in Grand Committee and the subsequent, helpful discussions that my noble friend Lady Barran and I had with a number of noble and noble and learned Lords outside the Chamber.

The tort has undoubtedly been one of the most controversial measures in the Bill. A number of noble Lords have spoken today to express their opposition to its inclusion in the Bill. However, other noble Lords strongly support the inclusion of the clause. My noble friends Lord Moylan, Lord Frost, Lord Strathcarron, Lord Jackson of Peterborough and Lord Farmer, and the noble Lord, Lord Moore of Etchingham, have written to me setting out compelling arguments for retaining the tort, some of which we have heard today. Many of the arguments have been echoed by the Free Speech Union in a letter to the Secretary of State for Education signed by 49 leading academics, among them, incidentally, Professor Kathleen Stock. Perhaps I might say in that context that I reject the view expressed by my noble friend Lord Moylan that the government amendments, to which I spoke earlier, somehow water down or weaken the tort provision. They address the concerns expressed about the perceived risk of the OfS’s role as a regulator being undermined and of unmeritorious claims burdening universities with unnecessary costs. I am sorry that no noble Lord acknowledged that the government amendments would deal with those perceived risks, in my view, pretty comprehensively.

We are dealing here with a mixture of arguments. Part of the argument advanced for removing the tort is that it is unnecessary and that there are somehow other measures available to achieve the same thing. I think the best place for me to start would be to address that issue. The noble and learned Lord, Lord Hope of Craighead, suggested in Grand Committee that there would be a common-law tort available, even if the statutory tort was not in the Bill, and that view has been supported by other noble Lords. The Government have looked carefully at that proposition, but we are not convinced that that position is sufficiently legally certain, and for that reason it is not something on which we would wish to rely. I believe that opinion is divided even among noble and learned Lords on the issue.

The purpose of including the tort in the Bill at introduction was to make it 100% clear that a tort will be available, rather than leaving it to the courts to infer whether or not Parliament intended there to be a tort, which in certain cases, they may do. To leave the situation uncertain when we have the opportunity to be absolutely clear would be remiss of us.

The noble Lord, Lord Grabiner, made the point that the tort is not necessary because judicial review is available, whether of a decision by the higher education provider or a decision under the complaints scheme of the Office for Students or the Office of the Independent Adjudicator for Higher Education. However, judicial review is not available against decisions of a student union, and damages are generally not awarded in judicial review claims. I am afraid I do not accept his argument that damages would never be quantifiable in such cases. Of course, let us bear in mind—

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

My Lords, my noble friend Lord Sikka knows the Labour Front Bench’s position on his amendment, because I wrote to him about it. He knows that we are very sympathetic to the issues and, like the noble Lord, Lord Wallace, believe that they need to be addressed. Certainly, over the years, all Governments have been focused on sufficient funding of research, through different mechanisms, such as the Medical Research Council and the Economic and Social Research Council—all these bodies through which we have attempted to ensure that research is open and transparent.

One of the problems that my noble friend is seeking to address is the sort of research when somebody decides to ask a question, hoping they know what the answer will be, and those tend to be funders, whether from business or industry. They are seeking a particular outcome and, if they invest in that research and the outcome is not the one they want, of course they will not publish. The noble Baroness, Lady Fox, focused on charities. I keep harping on about my own experience in the trade union movement, but I must admit that we certainly funded research in the hope that it would support our case for greater workers’ rights and higher pay. It did not always come out the way we wanted and we were sometimes not particularly keen to publish it. We did not prevent the academic from expressing the view and certainly did not stop them from publishing it themselves, but we were not necessarily going to promote it.

The Bill is about freedom of speech—we have had a long debate about it. When it comes to academic freedom and research, there are much more complex questions that should not really be dealt with in the Bill. I am fully sympathetic to some of the arguments that my noble friend Lord Sikka made, but this is not the right Bill, and certainly these amendments are not the right ones.

[Earl Howe (Con)]

My Lords, Amendment 23 tabled by the noble Lord, Lord Sikka, seeks to ensure that the provision of grant funding for research does not interfere with the academic’s freedom to edit and publish their research. The only exceptions would be if there was a confidentiality agreement between those giving and receiving the grant made in advance or if a court finds that full publication would threaten national security, public safety or health.

The noble Lord is of course right to be concerned about the provision of grant funding for academic research and, as he acknowledged, we discussed this issue in Grand Committee, although perhaps not conclusively. The approach in the Bill is to place duties on registered higher education providers, their constituent colleges and student unions. I have to say that it goes too far to place duties on others, such as those who give grant funding, and I am also not at all comfortable with the idea of interfering in the private contractual arrangements between parties, which would be the effect of this amendment.

If an academic wishes to seek grant funding, it is for them to agree with the other party what contractual arrangements should apply. That is in fact reflected in proposed new subsection (3)(b) of the noble Lord’s amendment and reflects the Haldane principle: that decisions on individual research proposals are best taken by researchers themselves through peer review—a principle enshrined in the Higher Education and Research Act 2017.

However, in my view it would go too far to require legal proceedings to determine whether full publication of research would threaten national security, public safety or health. First, those are extremely limited reasons, which I appreciate is the noble Lord’s aim, but there may well be other legitimate reasons why the grantor would not want full publication. Secondly, this would potentially open the door to costly and time-consuming litigation. I fear that this may have a chilling effect on grant funding if it deters grantors, which is obviously not desirable; it may also affect the academic, as a potential party to the litigation, who is likely not to have the means to fund their part in it. It does not seem to me that the involvement of the courts in such a matter is appropriate.

Noble Lords have suggested that there is a lacuna as regards transparency in the domestic funding of higher education. I hope that I can allay that concern very simply. The Higher Education Statistics Agency collects data about research grants and contracts, which is publicly available. The OfS collects data that it needs to support its functions, including ensuring that providers are financially sustainable, and publishes this through annual reporting.

Given those points, I hope that noble Lords will agree that this amendment is not necessary.

Higher Education (Freedom of Speech) Bill

Lord Collins of Highbury Excerpts

Consideration of Commons amendments
Tuesday 21st March 2023 Lords Chamber

[Lord Moore of Etchingham (Non-Afl)]

My Lords, I listened with great interest to what the noble Lord, Lord Moylan, had to say and I sympathised with the anguish he felt as a loyal Conservative supporter trying to deal with the problem the Government have presented him with. As a non-affiliated Peer I do not have that problem, but I share his anxiety about what the Government have done as it seems very vacillating and unhelpful.

I draw noble Lords’ attention to the famous words of Adam Smith that no people of the same trade are ever gathered together, even for diversion or merriment, without at some point conspiring against the public. It is lovely to have so many noble Peers in this House who hold or have held high positions in universities and university administrations—chancellors, vice-chancellors, professors and all the rest of them—but overall they constitute an interest. Their interest, naturally enough, is to believe that they are right, universities are well run and the critics are wrong. I ask them perhaps to consider that none of this would have come about if universities were being well run. These freedom of speech issues are very important and need some bolstering. When so many noble Peers who are associated with universities challenge and reject that, they must be conscious not to behave like trade union leaders in the 1980s who were defending powers that, it became clear, were unacceptable.

[Lord Collins of Highbury (Lab)]

As a former trade union leader I am a bit hesitant to contribute, but let me just say to the noble Lord, Lord Moore, that what has been excellent about our consideration of this Bill from Second Reading through to Committee is how, through excellent scrutiny, we have tried to reach a consensus, not a compromise. That is the important thing. On Report I confessed that I had changed my mind about the need for this Bill. I accept that better, more effective regulation will help to change culture in a more sustainable way. All this emphasis on tort does not really help the real problem that we have heard described.

I will be brief. I appreciate the comments of the noble Lord on non-disclosure agreements—a key element in terms of openness and transparency. The duties and responsibilities of the regulator, and how they are applied, will be important; I accept that universities need time to properly do that. But they have been developing good practice and best practice. They have responsibilities to freedom of speech, and I absolutely support that. I stress that the Opposition’s approach to this Bill has been totally non-partisan. I have supported the amendment from the noble Lord, Lord Willetts. I have certainly encouraged him because I have listened across the board as we have moved through each stage, and I think we will end up with a better Bill. In fact, with the consensus that has been reached, we now have a better Bill.

Despite some of the Minister’s concerns about what might happen down the other end, across this House and across all political parties we have reached a consensus; let us put the matter to bed. With our non-partisan approach, I assure him that the Government will have the Opposition’s support on their support for the amendments from the noble Lord, Lord Willetts. We can safely say that this Bill shall pass, and it will pass to defend the freedom of speech values that we all share. That is an important step that we can make.

I hope that the Minister will feel reassured about our approach to this Bill and how we have listened, changed our minds and supported very important consensus changes, which I think will ensure that all academics and university institutions will support this legislation.