Higher Education (Freedom of Speech) Bill

Lord Hunt of Kings Heath Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is a great pleasure to follow the noble Lord. In this very short but interesting debate we have already seen the problem that the Government are essentially seeking to address—a failure of leadership in many of our universities—through legislation that, given the amendments we have seen today, I suggest will be very hard to implement.

I remain unconvinced that this is the right way to tackle what is undoubtedly a problem in our universities. I first came across this when meeting Professor Kathleen Stock, who was subjected to horrific abuse in her own university for simply saying that your biological sex cannot be changed by feelings of identity, which I think are quite unexceptional and certainly legal remarks. Many other women academics in universities have felt threatened and censored for the simple act of trying to engage in these kinds of debates, particularly in relation to women’s sex-based rights. Unfortunately, many universities have allowed abusive behaviour to go unchallenged.

It seems to me that, at the heart of it, there is a question as to whether, even at this late stage, we can look to universities to put their house in order. I think that that would be a much more appropriate way forward than seeking to implement what I am convinced will be wildly impractical legislation. Already, our very civilised debate over what we mean by free speech suggests that this will be a huge problem when it comes to implementation.

The recent survey by the Higher Education Policy Institute showed a distinct shift in attitude by students, who it says

“have a very different conception of academic freedom and free speech norms than earlier generations”.

It suggests that these may have

“swung too far in one direction, with relatively few students recognising the unavoidable trade-offs involved with ever-greater restrictions on legal free speech.”

HEPI has come up with a list of things that it thinks universities might take forward, which seem very sensible to me. They include:

“reassessing formal procedures, such as existing codes of practice … ensuring consistent good practice, such as balancing controversial speakers with others … giving students improved information on academic norms, including in freshers’ weeks”.

I still think it might be better if the OfS, HEPI and the universities were allowed to work this through together. I suggest to the Minister that, if I were him, I would delay the date on which the Bill came into force to give universities time to try to change the culture and atmosphere within universities. This would be a much more practical and effective way of going forward.

However, if the Government are determined to press ahead, they clearly need to answer a lot of questions about the practical implementation of what they are proposing and the guidance to be given to universities. This is the reason for my Amendment 25. The question is how far intimidatory tactics against people speaking in universities are to be allowed under this legislation. We have seen intimidatory tactics. They can take a range of forms, including open letters demanding that an academic should be sacked for what they have said, vexatious complaints, petitions to publishers demanding that work be withdrawn, campaigns of defamation and smears, demands to prevent an academic being platformed, attempts to prevent events going ahead by threatening trouble if they do, and disrupting events that do go ahead. The targets of these tactics are typically women who believe that sex matters and have the courage to say so.

One possible response to these kinds of attacks is to frame the attempt to silence as itself a form of free speech, but this confuses the right to protest with a right to silence others. Speech that is merely intended to silence the speech of others, far from contributing to knowledge and learning, narrows the scope of the educational sphere. I argue that to frame attempts to silence as equally valid speech ignores the educational purpose of the university.

The amendment would explicitly exclude attempts to silence the speech of others from the scope of the core “secure” duty in the Bill and would require universities to take positive steps to mitigate the effects of those exercising what has been described as the “heckler’s veto” without disproportionately affecting the right to lawful protest. It would also clarify that the use of what I have described as the heckler’s veto to silence legitimate debate and dampen academic freedom on campus is not in itself protected speech.

This is a probing amendment because I want to hear what the Government have to say about our concept of free speech, how far it goes and what is to be done with intimidatory tactics. However, I am still left with the sense that the Bill as it stands is unworkable and will be an absolute nightmare for universities to implement. If only universities had shown leadership in the last few years this would not have been necessary.

Higher Education (Freedom of Speech) Bill

Lord Hunt of Kings Heath Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Lord Patten of Barnes (Con)]

I will add to the comments of the noble Baroness, and declare an interest as the chancellor of a moderately well-known university.

A university does not need legal advice in this case to defend freedom of research or expression; all it has to do is stop its subscription to the QAA—the Quality Assurance Agency for Higher Education—which only recently produced advice on the curriculum which was like a parody of an article in the Daily Mail. Among other things, it included the decolonisation of not just music—I entirely endorse what the noble Baroness has just said—but the maths curriculum. Clearly, the people who wrote it had never heard of Arabs, Indians or the Mayan civilisation, which was doing advanced mathematics before Christopher Columbus arrived. All that any university has to do is what Oxford has done—withdraw its subscription to the QAA, which is now pretty well on its last legs anyway. I regard the QAA’s advice to universities as in many respects the most dangerous assault in the last few years on freedom of expression and research at universities. It is crazy time—it is critical race theory canonised. Universities should denounce it with great enthusiasm.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the noble Lord raises a very important point, but is it not the case that many public institutions—including, I am afraid, this House in the past—have signed up to various highly controversial charters and indexes which require a standard of behaviour from the people covered by those institutions? At a national level, many of these bodies are cowed by aggressive minority interests into establishing and setting out these programmes.

For an individual employee working in those situations, it can be very intimidating to say, “I don’t agree with the Stonewall equality index and don’t see why my institution has signed up to it”. I am glad to say that this House, after a lot of pressure and with weasel words, eventually decided not to continue its membership, but many other organisations vie to have a high rating from it. That leads to behaviour and conditions in which it can be very intimidating for individuals who do not agree with the view taken. This is what this issue is really about and why it is so important. I hope the Minister will be very forthright in response.

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Moved by

[Lord Hunt of Kings Heath]

11: Clause 1, page 3, line 13, after “activity,” insert “including measures to be taken to ensure that a person is not prevented from speaking by attempts to drown out or silence a speaker,”
Member’s explanatory statement
This amendment, which relates to the code of practice to be maintained by governing bodies, is designed to ensure that in their duty to take steps to secure freedom of speech the code of practice must cover measures to be taken to ensure that a person is not prevented from speaking by attempts to drown out or silence a speaker.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I will move Amendment 11 and speak to Amendments 15 and 25, alongside my noble friend Baroness Morris. I also want to speak in support of Amendment 16, being moved by my noble friend Lord Collins. We will shortly come to a very important debate on Clause 4. It seems to me, whatever the outcome of that debate, that at the end of the day and at the heart of the Bill, we are trying to encourage behaviour in our universities which will ensure the freedom of speech that noble Lords have spoken about. I think that it is the codes of practice that will have a pivotal role in ensuring that, backed up by whatever sanctions we eventually decide are necessary, whether we have Clause 4 or not.

I will focus on the codes of practice that each university—and each student union—has to agree to. The OfS is enabled to ensure that those codes of practice are acceptable within the terms of its overseeing of university registration and that they are appropriate to each student union as well. The OfS has a responsibility in the Bill—I think it is a very good responsibility—to publish good-practice advice. I see this as a wholly constructive approach, encouraging the best behaviour you can expect within those institutions.

The concern that my noble friend and I raised in Committee was the extent to which academics and speakers can expect protection in the face of action that is designed to intimidate them and prevent them speaking. We know from the experience of a number of academics—in particular women academics—that such intimidatory action can take the form of open letters demanding that an academic be sacked, vexatious complaints, petitions to publishers demanding that work be withdrawn, campaigns of defamation, smears, demands to prevent an academic being platformed, attempts to prevent events going ahead by threatening trouble if they do, and disrupting events that do go ahead. As I said, the targets of these tactics typically are women academics.

I say to the noble Lord, Lord Wallace of Saltaire, whom I respect enormously, “Where have you been?”, when there has been such trouble for some academics on many of our campuses. We cannot sweep that under the carpet; it is a reality. Professor Kathleen Stock suffered horrific abuse and her university completely failed to defend her until almost the last moment. That was a graphic demonstration of why this legislation in the end is required.

I was very grateful to the noble Earl, Lord Howe, for meeting us to discuss this. What he essentially said, if I may paraphrase it, is that the Bill will protect the right of speakers to put forward controversial or unpopular ideas, and that it will also protect the right of those who do not agree with them to speak up. I absolutely agree with that. But it should not mean that higher education institutes should simply stand passively by while, for instance, hecklers attempt to disrupt planned events that are lawful.

I have seen it argued that such attempts to silence speakers are themselves a form of free speech. But I think that that confuses the right to protest with the right to silence others. Speech that is intended merely to silence the speech of others, far from contributing to knowledge and learning, surely narrows the scope of the educational sphere.

The amendments we have put forward try to make it explicit that the codes of practice of universities and student unions must cover the measures that must be taken to ensure that a person is not prevented from speaking by attempts to drown them out or silence them. They have become known as the “hecklers’ amendments”.

I would like some assurance from the noble Earl that the OfS in its responsibility for the continued registration of universities and in its oversight and monitoring of student unions will give its attention to this matter and that it understands that the issue will be very important to the success of the Bill. I beg to move.

[Baroness Morris of Yardley (Lab)]

My Lords, I rise briefly to support this amendment, to which I have added my name. I will try not to repeat everything that my noble friend Lord Hunt said but will emphasise some of his points.

I too was grateful for the meeting with the Minister. It was very helpful, and I think there was a great understanding of our view and of the problems the Government are having with putting this into legislation. I completely accept that the law has to protect both those who wish to express a view and those who wish to express a contrary view. In some ways, as my noble friend said, this is a “hecklers’ amendment”, but we are old enough both to have done some heckling and to have been the subject of heckling in past years. However, most of the time I was heckling or being heckled, it was not with the intent of stopping somebody else being heard; that is the crucial point.

Universities should be places where there is freedom to put forward a view and freedom to oppose it. I would never want a law of silence, where somebody’s view has to be listened to in silence. If there is an intention to make sure that the opposite point of view, which is legally held, is not heard, that is not the purpose of universities in this country. It never has been and it never should be. There are too many examples of that border being crossed.

Professor Stock has received a lot of publicity and rightly so—she felt obliged to lose her job. However, I have worked with academics who express an interest in sex and gender, and maintain the view that sex is a biological thing and that that should govern the law, and their lives have been made a misery. It is a long time since I have been to a university and talked to academics expressing that view when they have not told stories about it being miserable to be an academic because there is not the environment in which they can openly express their views. They are not people who want to impose an alternative point of view; the idea of putting forward a view is to engage in debate, not to make others say, “Yes, you’re right. Let’s move on.” Engaging in debate is at threat.

I can see that it is difficult to put that into law. It would be impossible; we would be here all day. I hope that putting this into the code of practice gives a clear message to the leaders of our universities that they have to take action, because, quite frankly, some vice-chancellors have not been doing their job on this. They have hidden quietly for too long and not stood up to protect their academic colleagues when they should have done. If that message can go forward in the code of practice, we might begin to reverse this tide.

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[Baroness Barran (Con)]

My Lords, I will address this group of amendments relating to codes of practice and the guidance under the Bill. I thank all noble Lords for their thoughtful and considered remarks.

Amendments 11 and 15 tabled in the name of the noble Lord, Lord Hunt of Kings Heath, would require higher education providers, colleges and student unions to include in their codes of practice specific measures

“to ensure that a person is not prevented from speaking by attempts to drown out or silence a speaker”.

Amendment 25 would require the Office for Students to include in any guidance it issues under new Section 69A, in Clause 5 of the Bill, guidance on such measures.

The purpose of the Bill is to protect freedom of speech within the law. As part of that freedom, individuals have the freedom to speak on topics of their choice, as well as to engage in peaceful protest against such speech, as the noble Lord clearly stated. These aspects of freedom of speech both need to be protected. The Bill does not give priority to one individual over another. This means that providers, colleges and student unions must take “reasonably practicable” steps to ensure that speakers who are speaking within the law, as well as those who wish to protest in disagreement with those views, are able to speak—and are not, in the noble Lord’s words, forced to stand by passively.

I should be clear that the Bill means protest in the form of speech, writing or images, including in electronic form. It does not include, for example, tying oneself to a railing or blocking a street—activities that are not speech and therefore not covered by this legislation, but are clearly covered by other legislation.

I reassure your Lordships that we expect event organisers to plan for what to do in the event of disruptive protests. The duty to take “reasonably practicable” steps does not mean that such disruption has to be tolerated. In fact, the duty to take such steps, as regards the speaker at the event, means that action should be taken to deal with such disruption. That might mean that security should be provided or that a protest outside a venue should be set back sufficiently from the windows.

The codes of practice are already required under the Bill to set out “the conduct required” of staff and students in connection with any meeting or activity on the premises. I hope that addresses the question from the noble Lord, Lord Triesman, about whether this applies to individuals. These amendments are not necessary as the issue is already covered by the Bill.

Equally, we expect the OfS to consider these practical issues and to provide advice about how providers, colleges and student unions can fulfil their duties, as well as share best practice that they identify—again, a point raised by the noble Lord, Lord Hunt of Kings Heath.

I trust that your Lordships are reassured by what I have said about how the Bill will operate and will agree that these amendments are not needed.

Amendment 16 tabled by the noble Lord, Lord Collins of Highbury, seeks to ensure that clear guidance is issued by the Secretary of State within three months of the passing of the Bill to help student unions to comply with their new duties. The publication of guidance for student unions is already covered by the Bill. Section 75 of the Higher Education and Research Act 2017 is amended by paragraph 9 of the Schedule to the Bill. Section 75, as amended, will provide that the regulatory framework which the Office for Students is required to publish must in future include

“guidance for students’ unions to which sections A5 and A6 apply on their duties under those sections”.

This must include

“guidance for the purpose of helping to determine whether or not students’ unions are complying with their duties under sections A5 and A6”.

The guidance may in particular specify what the OfS considers that student unions need to do to comply with those duties under new Sections A5 and A6, and the factors which the OfS will take into account in determining whether a student union is complying with its duties. It is worth noting that Section 75 requires consultation on the regulatory framework before its publication, and it must therefore be laid before Parliament, giving proper transparency.

In the new regulatory regime that the Bill will establish, including under Section 75, it would be wrong for separate guidance to be published by the Secretary of State rather than the regulator—the OfS. It would also, in practical terms, be too tight a timescale to require publication within three months of Royal Assent. There will be a great deal of work to be done on implementation, including setting up a complaints scheme team, drafting the new complaint scheme rules, drafting guidance, consulting on the changes to the regulatory framework and making those regulations; as your Lordships know, that will take time.

I hope my explanation has satisfied the concerns of the noble Lord and that the House will agree that the Bill deals with these issues appropriately as it stands.

[Lord Hunt of Kings Heath (Lab)]

My Lords, that has been a very helpful debate and I thank all noble Lords who have taken part. My noble friend Lady Morris suggested that some of us might have taken part in heckling in the past. I have to confess that I took part in one of the first university sit-ins at Leeds University in 1968, when—led by one Jack Straw, who was then president of the Leeds University union—we heckled Mr Patrick Wall, an MP at the time.

The noble Lord, Lord Grabiner, made a very important point about drawing the distinction between quite legitimate heckling and the kind of intimidatory action that we saw taking place in relation to a number of women academics. The noble Lord, Lord Macdonald, is absolutely right: I agree that there are elements of criminal behaviour. The problem is that universities were very weak. I really regret that the Bill has been necessary, but I am afraid that the lack of backbone shown by so many university leaders is why we are here today.

I agree with noble Lords that this is not a matter for primary legislation. Indeed, I am not quite sure how you would ever draft anything like it. We tried in Committee but I think one has to accept that it is not possible. The codes of practice and the oversight of OfS, though, are clearly crucial to the success of this legislation, so this has been a very good debate.

In relation to Amendment 16, I very much hope that the OfS will take note that any guidance it issues needs to be fully understandable by students within the student union. Having said that, I beg leave to withdraw my amendment.

Amendment 11 withdrawn.