Higher Education (Freedom of Speech) Bill

Lord Grabiner Excerpts

Consideration of Commons amendments
Tuesday 21st March 2023 Lords Chamber

[Lord Willetts (Con)]

My Lords, I declare my interest as a visiting professor at King’s College London and an honorary fellow of Nuffield College, Oxford.

I warmly welcome the Minister’s assurances about how this legislation will work. I particularly welcome his commitment, and that of other Members of this House, to support the amendments in my name. These amendments bear a striking resemblance to amendments the Minister himself tabled, which we debated on 7 December. It is evidence of his common sense and wisdom that he is supporting them now, as he did then.

I assure him that across the House, after many hours of debating this important legislation, there is shared agreement that there is a problem. Nobody is denying that there are egregious and appalling examples in which universities and students unions are not the safe spaces for free speech that we wish them to be. Sometimes people believe that they should somehow be a safe space from free speech, which is not what universities stand for.

There is also very strong support across the House for the Office for Students as a tough and effective regulator. I pay tribute particularly to my noble friend Lord Johnson of Marylebone, who early on intervened to make clear that it was the body that should have the crucial role in this case.

The issue has been about tort. As we were told, this is not the first time that Clause 4 has been the most controversial feature of a piece of legislation. Many of us had a real concern that the threat of civil litigation could have a chilling effect, threatening the activities of student unions in particular. That is why your Lordships’ House voted to remove Clause 4 from the Bill. The other place has reinstated it and we have to understand and respect that vote, but these amendments are a sensible compromise to clarify the circumstances in which the tort provision would apply. The litigant has to have sustained a loss and have exhausted other complaints procedures, notably the enhanced powers that this legislation gives to the Office for Students. I am very pleased that the Government have reiterated their support for those principles and recognised that this is how this tort provision should operate—very much as a last resort.

What these amendments would do is ensure that Clause 4 is very sensibly targeted. They would make it workable. In particular, they would remove the risk, which many of us on all sides of this House are concerned about, that a university, or even more so a student union, could find itself on day one receiving an investigation letter from the OfS and on day two receiving a lawyer’s letter threatening it with litigation. We thought that that was not a sensible or reasonable way to proceed, and indeed would obstruct the effective discharge of a regulatory function by the OfS.

I welcome the assurances that the Minister has given. The debate we have had on this legislation has been an excellent example of the role of your Lordships’ House as a revising Chamber. It has also reminded us of the shared values we have: a commitment to freedom of speech and diversity of opinion.

[Lord Grabiner (CB)]

My Lords, I confess to be rather miffed by the Government’s acceptance of the amendment of the noble Lord, Lord Willetts, because it deprives me of the ability to make the fire and brimstone remarks that I had planned to make. However, I certainly welcome the Government’s reaction to the excellent amendments of the noble Lord, Lord Willetts, and can as a result be quite brief.

On Clause 4, we have really come full circle and are back where we started. As has been pointed out, in our debates Clause 4 was subjected to many serious criticisms by noble Lords across the House, and I will not repeat them. In the face of those criticisms, at Report in this House the Government accepted a clarifying amendment from the noble and learned Lord, Lord Etherton, which incorporated a reference to damages in Clause 4. In a further attempt to meet these criticisms, the Government brought forward their own amendment, as the Minister has pointed out, which gave priority to the regulatory regime and deferred the ability of a private claimant to deploy Clause 4, pending those regulatory procedures being exhausted.

I respectfully urge your Lordships to support the amendments put forward by the noble Lord, Lord Willetts. As to those amendments, the loss point would clarify and emphasise the need for proof of damage as a condition for making a Clause 4 claim. It would deter some frivolous claims, and to that extent would be a valuable amendment.

The priority point in the amendment of the noble Lord, Lord Willetts, is perhaps rather more important. The OfS will have extensive regulatory powers for dealing with an offending student union. Clause 7 would amend the Higher Education and Research Act 2017, whereby the OfS would be obliged to monitor student unions’ performance of their new duties. Importantly, the OfS would also be empowered to impose a financial penalty on a student union and seek an injunction in court. Common sense suggests that the Bill would be significantly improved if priority were given to the regulator and claimants were not able to invoke the private law cause of action until the regulatory function had been performed and completed. This was the Government’s view just a few weeks ago, and I am absolutely delighted that it still is their view—at least in this House.

If I may, I want to briefly draw attention to the email from Ministers which arrived while we were in the Chamber but before this debate began. I will reference the end of the sixth paragraph, which is a point to which the noble Lord adverted when he opened this debate just a few minutes ago. The letter says: “Those affected by the Bill are at the forefront of our minds and it is only right that we reflect that the Government may wish to explore further opportunities to achieve consensus when it returns to the Commons”. The only point I want to make about that is this. The implication of what is said there, and of what the Minister said at the Dispatch Box, is that there may be amendments in the other place that will take away the amendment that I hope we are now going to support, possibly without even a Division. My concern is this: I believe that that would not be a sensible thing for the other place to do.

I would urge one point: if there are felt concerns in the other place that are not satisfied by these amendments, a more appropriate route to be undertaken would be directed towards the regulators, rather than to diminish the quality of the amendment that I hope we are about to make. The regulators are very powerful—they have strong powers in the statute and in this Bill. In my view, the correct party to be concerned with in dealing with the kinds of concerns that trouble everybody in the story, and the proper starting position, is the regulator. That is what the regulator is there for. It would not be right, in my view, to undermine the quality of the amendments that have been put forward in respect of this provision without first facing the possibility that the regulator ought actually, if I may be blunt about it, to pull its finger out.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I was all ready to welcome the restoration of the original Lords amendment to this Bill by the noble Earl, Lord Howe. Previously, I was despondent that we had passed legislation with no teeth, which was potentially a lame duck law, so I was delighted with the reinstated, stronger statutory tort in the Bill that would mean staff and students would have a robust backstop that allowed the ability to sue in the civil courts for breach of their speech rights. In explaining the change, the Minister said he has spoken to many noble Lords. But I am rather taken with the words of the Under-Secretary of State for Children, Claire Coutinho, who noted that she had spoken to many leading academics and that they shared her belief that the tort was necessary to secure cultural change on campus, and that that is why she had introduced the amendment I was prepared to welcome. I can ask only what on earth has changed, other than that the Minister has spoken to noble Lords rather than to leading academics or students.

It is disappointing that we are now being asked to accept a fudge, in the form of the amendment from the noble Lord, Lord Willetts. I fear it will mean that the new, enhanced free speech duties will be viewed as more box-ticking by university managers and student union bureaucrats.

Perhaps I can share my own recent lived experience—to use the fashionable jargon—of being cancelled. I hope at least my remarks will be heard by those in the other, elected place when they consider this debate. Last year, I was delighted to be invited by the University of London’s Royal Holloway debating society to give a talk this February. It was a lovely invitation, from a student called Ollie, who wrote: “We would absolutely love for you to speak to the society about your interesting career, and to talk about the Academy of Ideas and the House of Lords to our keen crop of debaters.” Never one to miss a chance to meet and talk to a keen crop of debaters, I set a date firmly in my diary and I reorganised a number of clashes.

Unbeknown to me—though this has become routine these days for student societies—behind the scenes the debating society had to go through onerous and bureaucratic checks imposed by the student union on whether I would be given permission to speak. Student unions these days have created a veritable cottage industry in safeguarding checks, risk assessments, et cetera. It was a complete pain for the students and time-consuming, and with an undoubted chilling effect on inviting outside speakers. That is what this Bill set out to address, was it not?

Eventually, I was given a clean bill of health by the student union. Apparently, there was no evidence that I was a hatemonger or a threat. However, just a week before I was due to speak, the debating society cancelled. What happened? Once the event was advertised, the same student union bureaucrats claimed that six societies had raised concerns about me coming on to campus, the evidence for which was that I retweeted a clip from a comic on Netflix. Maia Jarvis, the president of the student union, wrote a menacing message to the debating society, stating:

“I hope that you can see that Claire Fox retweets and praises a video of Ricky Gervais being overtly transphobic. I wonder if you have thought about the impact of bringing a person who is an advocate for hate towards trans people and publicly ridicules them. And whether you are comfortable with the fact that that is the message your society is sending out to RHUL trans students.”