Higher Education (Freedom of Speech) Bill Debate

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Higher Education (Freedom of Speech) Bill

Lord Hope of Craighead Excerpts
Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, I rise to speak to Amendment 1 and other amendments in the name of my noble friend Lord Wallace of Saltaire, with his permission, as he cannot be with us in Committee today.

Quite often in Committee, the first amendment can seem a little trite. Sometimes it inserts “and” or deletes a semi-colon, because the way we have to table amendments is sometimes a little esoteric. On this occasion, the first amendment fits with the wide range of amendments that form this group—namely, in Amendment 1, my noble friend suggests that after “speech” we should insert “within the law”. This goes with a whole set of amendments that, in many ways, are trying to ensure that the variety of issues within this legislation, if it is necessary and has to pass—like my noble friend, I query its necessity—are dealt with. The first amendment seeks to make sure that we are clear about what we are looking at in the concept of freedom of speech. Reaffirming that within the law is clearly important.

My noble friend also tabled a range of amendments to insert or withdraw “beliefs”. He says that they are self-evident but, in particular, he wants the Committee to think about what His Majesty’s Government mean by “beliefs” in the context of this legislation, because the problem that this legislation purports to resolve is about freedom of speech in higher education, but that concept is not always well-defined.

At this point, I take a moment to declare my interests. As outlined in the register, I am an academic employed by the University of Cambridge, a fellow of Robinson College Cambridge and a non-executive director of the Oxford International Education Group, plus I sit on the odd advisory body of other places of higher education. Therefore, I have a professional interest in the Bill, but I also have an interest in ensuring that any legislation that we pass is absolutely clear. One of the biggest problems for many of us, whether in higher education or other parts of public service, is not necessarily whether the legislation exists but how clear it is and how effectively the people subject to it are going to be able to monitor it—is it clear to everybody? One of the best examples of this was the Licensing Act 2003. When it was introduced, it was full of uncertainty, vagueness and lack of clarity. It took many amendments and much work by local authorities to understand what the Government wanted.

It is important that in this legislation we are clear what is meant by “beliefs” and what the Government’s understanding of “beliefs” is. Also, as Amendment 3 in the name of the noble Lord, Lord Collins of Highbury, points out, we need to be clear what we are talking about in the context of freedom of speech in higher education. Although there are no Liberal Democrat signatories, I have no hesitation in putting forward Liberal Democrat support for Amendments 3 and 11, because both amendments are extremely important to bring clarity. I shall not pretend in Committee to channel my noble friend Lord Wallace; I shall simply move the amendment in his name, support those in the name of the noble Lord, Lord Collins of Highbury, and look forward to hearing the debate at this stage. I beg to move.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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My Lords, I shall speak to Amendment 2, which is in my name and that of the noble Lord, Lord Triesman. The amendment seeks to do two things. First, it seeks to explore what the Government mean when they refer to

“freedom of speech within the law”

in new Section A1(2). Secondly, it seeks to avoid a possible inconsistency between the freedom of speech that the Bill seeks to protect and promote and the right to free expression that is protected by Article 10 of the European Convention on Human Rights.

There is a bit of history behind this amendment. I drafted it just after the Bill received its Second Reading in the summer. At that time, the Prime Minister was Boris Johnson, the Secretary of State for Justice was Dominic Raab and the Bill of Rights had just been introduced, which I think it is right to say he particularly favoured. The point that concerned me at that time was two Bills dealing with freedom of expression or the right to freedom of speech proceeding together without any connection between the two. What happened, as we all know, is that there was a change of Prime Minister. When Liz Truss became Prime Minister, Dominic Raab was no longer the Secretary of State for Justice and it was made known that the Bill of Rights was no longer to be proceeded with. However, there has been another change: we have a new Prime Minister, Dominic Raab has come back in again as Secretary of State for Justice and it is possible that the Bill of Rights may be resurrected and create the problem that I was anticipating in the summer. I stress that one of my motivations behind this amendment was to be sure that both bits of legislation, if they are to proceed, are in communication with each other and that, when we use the expressions “freedom of expression” or “freedom of speech”, we are talking about the same thing.

I come back to the point that I mentioned at the beginning: the phrase “within the law” needs some explanation. It seems to assume that the law already tells us what the freedom amounts to. I think that most people—certainly most lawyers—would tend to look to Article 10 of the European Convention on Human Rights as telling us what the freedom amounts to, because it spells it all out and it is suitably qualified for various reasons when you read the second part of Article 10. I should have thought that to build it into this Bill makes good sense. The amendment seeks to explain and give body to the expression “within the law”.

Those are the two reasons: first, to give greater body to the phrase “within the law”, so that everybody understands what it means and to preserve consistency with Article 10, which is part of our law; but also to avoid a possible inconsistency with the Bill of Rights, should it be reintroduced, because it would be unfortunate if that Bill, when it talks about freedom of speech, as it does, should be using a different basis for legislation. I should explain, and I am quoting now, that Clause 4 of the Bill of Rights says:

“When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right.”


It goes on to say:

“In this section ‘the right to freedom of speech’ means the Convention right”.


It then sets that out in full in the way that my amendment does.

My amendment is based on the wording that can be found in Clause 4(2) of the Bill of Rights as it was, and it is the best I can do to bring the two Bills into line. With great respect, I do not think that this amendment does anything to harm this Bill or in any way interfere with the basic principles which the Government are seeking to achieve by promoting this legislation. All I am trying to do is avoid misunderstandings and inconsistencies. With that background, I commend the amendment to the Committee.

Lord Triesman Portrait Lord Triesman (Lab)
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My Lords, I start with my declaration of interests: I still hold academic posts at Cambridge, and I was the general secretary of what was the Association of University Teachers, now UCU—it is a rather different beast these days, but none the less, it was part of my history. It is a privilege to follow the noble and learned Lord, Lord Hope of Craighead. I think the distinction he makes, and the way we could embody consistency between potential pieces of legislation, is very important.

Although Amendment 22 is in a different group, I will make a point now which might mean that it does not have to be repeated later. It is very important to the academic world to know exactly what we as legislators mean by the different terms used. These terms are used very widely in academic life; they always have been and so they should. They were widely defended in academic life as being fundamental to its culture. I would like to believe that they are fundamental to the culture of many other parts of life as well, but they were fundamental to that culture. One of the reasons it is so important to express these concepts in this Bill, and one of the reasons I can understand why the Government have produced it now, is that, sadly, the challenges to freedom of speech and academic freedom have become much more acute and have not been dealt with particularly effectively.

I hark back to the earlier period precisely because the sector itself would have then dealt with these things very firmly and effectively. It was the DNA of the sector. Nobody would have questioned the right of people within the law to espouse views that were unpopular, take sometimes dogmatic positions and engage in every kind of argument under the sun, and, if others wished to try to rebut those arguments, to hear those other arguments in the same spirit. That was—I hope the Committee will forgive me for repeating the point, but it seems so fundamental—the DNA of this sector. I would like to feel that, when the final draft of this Bill appears, it will contain expressions about that which will be instantly recognisable to the people who used to celebrate those values. They will then see this as theirs, not just ours—not just what legislators think is right but what the sector was committed to and always believed was right. The noble and learned Lord, Lord Hope, has done us a great favour in saying that.

I also support wholeheartedly my noble friend Lord Collins’s amendments. I want to make one brief point about the concept of “within the law”. Generally speaking, I would hope that I understand what those words mean, but there are some areas where freedom of expression arises where I am not entirely sure that I do. I want to mention those here, not because I want to restrict people’s freedom of expression but because I do not want us to do undue harm to anybody. I am thinking here of the kind of coverage given in public by some people to the murder of the children at Sandy Hook and the case, which I believe will be reported on “Panorama” this evening—goodness knows how I know, but I have heard this—to do with people making gross allegations about what happened at the Manchester Arena bombing.

Higher Education (Freedom of Speech) Bill Debate

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Higher Education (Freedom of Speech) Bill

Lord Hope of Craighead Excerpts
Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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My Lords, I hesitate to intervene in this debate as I am not an academic. I look on the wording of the provisions in the Bill as a simple lawyer. For my part, I like the very simple wording of the existing provision in new Section A3. It is capable of accommodating changing circumstances and the various situations that academic institutions have to deal with.

The problem, with great respect to the noble Lord, Lord Moylan, is that he complicates that simple expression in new Section A3 with a serious of steps that are to be taken. I am not sure that anything he has said is inconsistent with what we find in new Section A3, but I would much rather keep it in the simple form that is already in the Bill without adding to the complication. To put it another way, the noble Lord, with great respect and with very good intention, is perhaps trying to do too much by expanding and trying to explain the duty already in new Section A3.

I do not object to the addition suggested by the noble Lord, Lord Willetts, but I do not think it is necessary as, if it is a relevant legal duty, it is already there to be performed; it does not need to be said. As a lawyer, I prefer simplicity—not all lawyers do—and I would like to keep it simple in the way it is already expressed in the Bill.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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My Lords, from these Benches we have relatively little to add. I strongly support what the noble Baroness, Lady Chakrabarti, said on various issues, not least about academic excellence because it is not just about academic freedom. Part of the purpose of a university is about educating and engaging in debate, but we are also trying to ensure that the minds of students are being stimulated. It is not just about academic freedom but that is part of it. As the noble and learned Lord, Lord Hope of Craighead, has said, Amendment 31 seems somewhat unnecessary. While on these Benches we support the amendments in the names of the noble Lords, Lord Willetts and Lord Stevens, if the Minister can persuade us that they are all implicit in the Bill and are not necessary, then perhaps they could not be moved.

Higher Education (Freedom of Speech) Bill Debate

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Higher Education (Freedom of Speech) Bill

Lord Hope of Craighead Excerpts
Lord Grabiner Portrait Lord Grabiner (CB)
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My Lords, if I may respectfully say so, I was extremely interested in the observations of the noble Lord, Lord Johnson of Marylebone, in support of the two amendments to which his name is attached. But there is another aspect of this discussion that gives me an opportunity to have a personal grouse, based on my own experience of higher education in the UK. Until recently I was the master of Clare College, Cambridge, and before that I was for many years chairman at the London School of Economics. We always took enormous pleasure on those occasions when we were able to recruit under-privileged students from poor postcode districts. At the end of the day, it is a terribly important part of the education process that we are concerned with.

The big problem with the current state of play—it has been going on for many years now—is that the cost of educating an undergraduate student at, say, Russell group universities is significantly more than the £9,250 charge that we make. Accordingly, most universities operate at a working loss in respect of the undergraduate school. It is only when you get to the uncapped overseas funds and the kinds of people we are talking about in these amendments that universities get an opportunity to, in effect, balance the books. I am afraid that for many years now, to balance the books we have had to take unregulated students from abroad—with, I entirely agree, a special emphasis at the moment on China.

Some of these fees are literally enormous, at £20,000, £30,000 or even more for certain specified courses. This is a very unsatisfactory state of affairs, not least because, when these students come from somewhere like mainland China, we are not interested in poor postcodes or whether they come from underprivileged families and so on. The answer is that they do not: they come from well-heeled families or state-funded backgrounds, enabling them to be educated here and—invariably, I am afraid, in most cases—to go straight back to their home countries. This is a serious concern, because we need strong cohorts of foreign students to come to our universities, without whom we would not be able to balance the books.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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My Lords, following on from the noble Lord, Lord Grabiner, two words in the amendment cause me some concern: “overly reliant”. The problem is that no touchstone is provided in the amendment as to how that phrase is to be applied.

As it stands, subsection (2) gives clear guidance as to what the OfS is to look at. The problem to which the noble Lord, Lord Johnson of Marylebone, has drawn our attention is very widespread. It is not only China that one has to consider; there may be other countries too, and there is the question of balancing the contribution made in proportion to the size of the country, and whether it is so great that it gives rise to particular concerns. However, if I may say so with respect, the clause would be improved if it said a little more about the particular point to which the OfS should direct its attention, so that it knows itself what it should be doing.

Lord Willetts Portrait Lord Willetts (Con)
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My Lords, in the light of that last comment, I can briefly intervene with reference to Amendment 65 in my name. I register my interests as a member of the board of UKRI and a director of Thames Holdings.

I have two questions for the Minister but they arise also from the important intervention of my noble friend Lord Johnson of Marylebone. First, we do indeed need some sense of proportionality; the figure of 1% of the total income of a registered provider was an attempt to get some sense of what constituted undue influence. It would be very helpful to have an update from the Minister on the Government’s view on that. Secondly—I am speaking very much in a personal capacity—this clause is really about research funding. Of course, my noble friend has made an important point about teaching income. In the legislation which he steered through this House, there was a rather clear distinction between teaching, which is a responsibility of the OfS, and research, which is a responsibility of UKRI. It is important that those two bodies work together.

It would also be helpful to hear from the Minister how she envisages the OfS scrutinising what in this clause is predominantly research funding, for which the OfS has historically and legally not had any responsibility, but for which a different government body, on whose board I sit, currently has the main responsibility.

Higher Education (Freedom of Speech) Bill Debate

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Higher Education (Freedom of Speech) Bill

Lord Hope of Craighead Excerpts
Moved by
1: Clause 1, page 1, line 11, at end insert—
“(1A) “Freedom of speech” refers to the Convention right of freedom of expression set out in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as far as it consists of a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form).”Member’s explanatory statement
This amendment seeks to avoid a possible inconsistency between the right to freedom of expression which this Bill seeks to protect and the right to freedom of expression in Article 10 which is the subject of other legislation which may come before the House.
Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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I will pause for a moment to allow noble Lords to leave the Chamber.

My Lords, there are two amendments in this group to which I will speak, and two government amendments in the same group on which I will comment. Before I go further, I express my appreciation to the Ministers, the noble Earl and the noble Baroness, for their very kind co-operation and discussions with me and others in trying to resolve the points I am raising in this group. I appreciated it very much and, for reasons I will explain later, those discussions were extremely fruitful.

My first amendment is in exactly the same terms as an amendment that I tabled in Committee. It simply asks that a provision be included in the Bill to explain what is meant by the expression “freedom of speech” in this context. The problem arises because those of us who are familiar with Article 10 of the European Convention on Human Rights are used to the expression “freedom of expression”, which is what the article talks about. I was concerned that, by some mischance, the Bill was seeking to create a different freedom from that which Article 10 is talking about. By simply putting in the definition in the fairly stark terms that I proposed in my amendment, I thought I could achieve some degree of certainty. I am glad that there was a certain amount of support in Committee for what I proposed, and the noble Lord, Lord Collins, has very kindly added his name to my amendment; I appreciate his support.

My other amendment in this group is Amendment 10, in which I have the support of not only the noble Lord, Lord Collins of Highbury, but the noble Lord, Lord Moylan, with whom I discussed this issue in some detail. It seemed to me and I think to the noble Lord, Lord Moylan, that more needed to be said about the checks and balances which surround the whole concept of freedom of speech or freedom of expression, whichever terminology you choose to use. The convention makes this very clear, because Article 10 sets out the basic right in paragraph 1 and then in paragraph 2 makes a number of qualifications, which make comparatively good sense, to explain that the freedom is not unqualified.

In discussion with the noble Lord, Lord Moylan, I proposed to put forward an amendment which did not come before the Committee to explain what the phrase “within the law” means. I should explain that the way the Bill expresses the idea of freedom of speech is to encompass it as freedom of speech within the law. It seemed to me that the words “within the law” beg the question of what exactly that expression means. A simple way of doing it is to put in a definition, which is what Amendment 10 does. It states:

“‘within the law’ means that the exercise of this freedom is subject to the duty to respect the rights of others and not to do or say anything that is prohibited by any enactment or rule of law.”

I suggest that this simple terminology encompasses what “within the law” means, because the phrase suggests that there is some qualification on the idea of freedom of speech, and this amendment is trying to explain exactly what that qualification is.

Those are my amendments, and I do not think I need to say much more about them. I have discussed them both in some detail with the Minister—the noble Baroness, Lady Barran.

As for the government amendments, I am delighted to see that, as a result of discussions, the Government have brought forward amendments which recognise the place which Article 10 of the convention has in our overall understanding of what the freedoms we are talking about really mean. For that reason, I am happy to see these amendments, and if they are to be moved I shall not press my first amendment. However, I remain of the position that my second amendment, which has been supported by the noble Lord, Lord Moylan, has real force. When we come to the point, I suggest that it requires considerable thought and support because it is essential that we understand what the words “within the law” really mean. Either they are there for a purpose, and if the purpose is there it should be explained, or they have no purpose at all, in which case those words should not be in the Bill. I hope I have explained my position as shortly as I can. With that introduction, I beg to move.

Lord Moylan Portrait Lord Moylan (Con)
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My Lords, it is a great privilege to speak after the noble and learned Lord, Lord Hope of Craighead. I have the impression—perhaps I am making it more explicit than he was willing to—that the Government have slightly misconceived the issue: it is not a definition of freedom of speech but rather a definition of the legal framework within which freedom of speech is to be understood. That is, the meaning of the words “within the law” is at issue slightly more than that of the words “freedom of speech”.

--- Later in debate ---
While the very existence of NDAs makes it difficult to understand the full extent of the practice, a 2020 BBC investigation found that nearly one-third of universities had used NDAs to resolve student complaints. I agree with the noble Lord that we cannot allow this practice to continue. It has been encouraging to see that many institutions have signed up to a voluntary pledge rejecting the use of NDAs in such circumstances—a pledge launched by the previous Minister for Higher and Further Education, my right honourable friend Michelle Donelan, together with the campaign group Can’t Buy My Silence. However, it is telling that many institutions have not done so, despite strong encouragement from the Government. So this amendment follows on from the Government’s work in this area over the last year. Just today, the OIA has advised against the use of NDAs. I am pleased to support this amendment on behalf of the Government, and hope very much that your Lordships will also support it.
Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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My Lords, I am grateful to all those who have spoken in this short debate and, in particular, to the Minister for her explanation.

If I may concentrate particularly on government Amendment 7, it achieves my main purpose in my Amendment 1 to avoid the suspicion that, when you talk about freedom of expression in this Bill, you are talking about something quite different from what is referred to in Article 10 of the convention. The reference here makes it clear that we are talking about the same thing.

Baroness Barran Portrait Baroness Barran (Con)
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I think I heard the noble and learned Lord say “freedom of expression” in this Bill, but I think he meant to say “freedom of speech”.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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Yes—I have got them the wrong way round, as I frequently do. But it does not really matter, because we are talking about the same thing, which is the particular problem that I was concerned with.

I have great respect for the noble Lord, Lord Moylan, with whom I had a very deep and interesting discussion. I must confess that I do not have the same concern as he does about the reference to Article 10(1) only in the definition that the Government are proposing. If we read on beyond that reference, it says

“Article 10(1) of the Convention as it has effect for the purposes of the Human Rights Act”.

The way in which you work out its effect is to read on to paragraph (2). I therefore think that, in short and very subtle terms, it achieves the very point. I do not really agree with the noble Lord’s concern, which I think is met by those particular words “as it has effect”.

For these reasons, and with thanks to the Government for their willingness to come forward as far as they have done, I withdraw Amendment 1.

Amendment 1 withdrawn.