Higher Education (Freedom of Speech) Bill

Lord Mann Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

To the noble Lord, Lord Hunt, and others who are sceptical, I say that that is necessary but the Bill is the bottom line. The more that we can clarify through this Bill that free speech is under attack and that the law will not allow people to be penalised for speaking out in terms of academic freedom, the better. But we probably have to clarify what we mean by free speech before it will work.

[Lord Mann (Non-Afl)]

I begin by saying that, although I do not know how many others here have, I have on more than one occasion been banned, or attempted to be banned, from speaking at a university. I was last issued a banning order by the University of Nottingham in 2009, I believe, which I ignored. Various people were running around with tape recorders. The argument put forward then was that I might say something offensive because I was speaking at the Jewish society.

In the 1980s I was banned, and I had to have a meeting reorganised in a local hostelry. I was banned then because—it was very simple and straightforward—I had had the audacity the year before to visit the state of Israel. I spent four days there with the Government, but I also spent four days with Fatah, the Palestinian liberation organisation on the West Bank. It seemed to me a balanced visit, and very interesting and educational. But I was banned from speaking at a university and in two other universities my publicity was withdrawn, which made it rather difficult for anyone to attend a meeting because they did not know that one was taking place.

So this is not a new problem—and nor is it a new problem in terms of debate. I recall well the speaker tour of the Paedophile Information Exchange across universities, which took place in 1978 and 1979. Many universities had such speakers; the content was not illegal but without question it was an organising campaign for that organisation, much more than an educative one. That was certainly my assessment of it. I recall in 1985 the banning of Jewish societies, on the basis that they were bound to be racist because they were full of racists and therefore should not be allowed any space in a university. I make the point simply to inform the debate—we are not talking about a modern phenomenon.

I want to pick up one particular point from these amendments: the proposal on Holocaust denial. It is true that Holocaust denial is not a criminal offence in this country, unlike in other countries, such as Germany and Austria—I think seven or eight countries across western Europe have that. To me, that does not seem a sufficient reason not to have such an egregious denial of history in this legislation. It would be a positive outcome if the Government wished to go further in terms of criminal justice. That would be done by a separate department, with separate legislation, and it may well get some support. In this context, it seems that provisions on the acceptability of entirely turning history on its head would be helpful to our universities, although the main problem we have these days is of course Holocaust distortion and minimisation. I would not suggest going further into a much greyer area, but I think this proposal ought to be considered very strongly by the Government.

[Lord Macdonald of River Glaven (CB)]

My Lords, I declare an interest as the former warden of Wadham College, Oxford, and as an honorary fellow there and at St Edmund Hall, Oxford.

I have a great deal of sympathy with the remarks made by the noble Lord, Lord Hunt, in which he identified a problem but suggested that this Bill was not the right way to confront it. As the noble Baroness, Lady Fox, rightly said, the problem is a very deep-seated cultural issue that I doubt will be dealt with significantly by this legislation, should it pass. It is my experience of running a college that has led me to feel rather queasy about some of the slightly nightmarish, as I see them, schemes and bureaucracies proposed by the Bill.

Of course, there is an issue. The case of Kathleen Stock is the most egregious example. In my view, she was disgracefully mistreated by her university and professional colleagues, not to speak of the students at the University of Sussex, some of whom seemed to be clearly breaking criminal law with the demonstrations they mounted against that highly respected academic. Young men—they seemed to be men—wearing balaclavas, holding flares and chanting threats against her seemed to me clearly to represent a breach of the criminal law, and it is a great shame that the university did not see it that way.

However, it is not just Kathleen Stock. The events in a Cambridge college over the past few days have also been deeply disturbing. The idea that a writer such as Helen Joyce, who I would regard as entirely in the mainstream, should be regarded by the most senior figures in that college as unacceptable as a speaker seems deeply depressing and redolent of a cultural problem, not just in that college.

An amendment put forward by the noble Lord, Lord Hunt, therefore attracted my interest. It is the one that relates to the question of a hecklers’ veto. The way I perceive it, the issue in universities is not so much that events are being stopped by demonstrators standing outside chanting and making a nuisance of themselves; it is the more or less cowardly response of university and college authorities who decline to host events when they fear or are warned that that sort of response will eventuate. This is a true hecklers’ veto. I have some sympathy with that amendment, although I share again the hesitation expressed by the noble Baroness, Lady Fox, that the Bill should contain a clause which is anti-free speech, if you like, rather than it being consistently pro-free speech.

I have great respect for the noble Lord, Lord Moylan, but I strongly disagree that Article 10 is somehow deficient for our needs in this area. On the country, it provides generous and comprehensive jurisprudence on the right to free speech; it is suitably qualified and well understood by our courts, public bodies and public institutions. It is certainly well understood in the University of Oxford, the university I have been most associated with. I think Article 10 is entirely fit for purpose and I strongly support the amendment from the noble and learned Lord, Lord Hope, to reference it in this legislation. It would provide consistency and legal certainty, so I hope the amendment will not in the end be controversial with the Government.

--- Later in debate ---

[Earl Howe (Con)]

I am grateful to the noble Lord. I wanted just to cover another question that the noble Baroness put to me about retired professors. If a retired professor is an emeritus professor, they are protected by the Bill as a member. This is important if they still have a role in the university. If they have no such role, then in practice the provider will not have to take steps to secure their freedom of speech since they will not be speaking on campus or taking part in university life.

I turn to Amendments 22, 26 and 71, which seek to define academic staff for the purpose of the Bill. We have used the term “staff” to broaden the existing reference to “employees” in the Education (No. 2) Act 1986, as not all those who work at a provider have an employment contract or employee status. This term is already used in the current definition of academic freedom in the Higher Education and Research Act 2017 so is an understood term in this context.

“Staff” includes academics who hold honorary appointments for which they are not paid, for example honorary fellows. PhD students will be considered to be academic staff, for example, in so far as they teach undergraduate students. It will be a question of fact in each case whether they are covered as staff or students. The term covers staff at all levels, whether or not they are full time or part time, permanent or temporary. Visiting staff who are perhaps working at the university for a year are also covered. They must be distinguished from visiting speakers who are academics working at another institution, who are covered by the Bill as visiting speakers, rather than as staff of the provider.

I listened with care to the noble Lord, Lord Stevens of Birmingham, and his question about the way in which academic freedom interacts with academic standards. I said earlier that there is nothing in the Bill to encourage baseless or harmful claims or bad science on campus, but it is important to recognise that a provider in this context is an employer, and that its staff will have signed an employment contract and be subject to its employment policies.

[Lord Mann (Non-Afl)]

Under the Bill as currently worded, would the emeritus professor at Sussex University—who was not an employee but would have been covered—who was sacked four years ago for saying that 9/11 was an Israeli plot have had the option of suing the university?

[Earl Howe (Con)]

I do not think it is for the Bill—or indeed the Government—to specify an answer to that question one way or the other. It would depend on the policy of the university as to whether it wished to still regard that person as an emeritus professor if it took exception to what he said. I think that is as far as I can go at the moment, but I am happy to write to the noble Lord, Lord Mann—

[Lord Mann (Non-Afl)]

So, is the Minister clarifying that there is nothing in the Bill that would prohibit the university from sacking that emeritus professor if the university determined that it was appropriate?

[Earl Howe (Con)]

Exactly right.

I was making the point that a provider in this context is an employer and that its staff will be subject to its employment policies. Those policies must, of course, take account of the high regard that academic freedom is held in. However, depending on the circumstances, a provider may need to consider factors such as whether it is appropriate for the academic to continue to teach students; whether the academic has met accepted academic standards for their speech; and the ability of the academic to properly represent the provider in terms of its values and the reputation of the department and the provider.

The Bill recognises the nuances of the potentially difficult decisions that will need to be made under it. The “reasonably practicable” test allows for case-by-case decisions to be made, taking account of all the relevant factors.

--- Later in debate ---

[Lord Stevens of Birmingham (CB)]

The noble Lord, Lord Willetts, sends his apologies for an unforeseen family emergency, so I will formally move Amendment 5 and speak to Amendments 7, 8 and 38 to 41.

Given that these originate with the noble Lord, Lord Willetts, noble Lords can be assured that they are pragmatic and constructive amendments that will not necessarily detain the Committee for terribly long. Their aim is simply to make clear that universities should be allowed to move events around the campus without cancelling them, on the grounds that it should be reasonable to move a controversial and possibly noisy event so that it does not occur, for example, next to an exam hall at exam time. It is reasonable to move an event so that it happens on a part of the campus that makes event management easier or so that it does not conflict with other events at the same time.

Some people may argue that these flexibilities might mean the surreptitious or indirect cancelling of events, but other parts of the Bill address this concern. Indeed, to pick up the point that the noble Baroness, Lady Chakrabarti, made earlier, in fact they may make it easier to invite people and expand the number of speakers invited to campus, knowing that these flexibilities exist. Per the rest of the Bill, universities and student unions would remain liable to sanction if they had in fact cancelled an event, not merely moved it, and the Office for Students would be able to respond to a complaint.

In a nutshell, these practical amendments that we hope the Government might consider as the Bill progresses would simply provide sensible if narrow discretion to universities and student unions to decide where and when events happen.

[Lord Mann (Non-Afl)]

My Lords, my Amendment 6 is on the same principle: unintended consequences. The Government would be very foolish not to listen in and to amend the Bill accordingly.

When I was a student leader, I had a range of tactics. With this Bill, I could put those tactics into play very easily. At the moment I go around a huge number of universities in another role; I was at one this morning. A week ago I was at a very prestigious one, in the vice-chancellor’s office. I did a recce in preparation and spotted a meeting room. If I was at that university, or knew someone in a society at that university—such as, let us say, the anarchist society—I would get invited there and, if I wanted to be disruptive, have a rolling meeting. The meeting would simply continue and continue. Some activists and campaigners would do that. They may not glue themselves to the door, because that would be criminal damage and they would be removed, but it would be possible to keep a rolling meeting going. I can recall one that was kept going for six weeks, not in the vice-chancellor’s office but in the registrar’s office. That is possible. I suggest that that would be an unintended consequence of this.

There are also groups that could get themselves invited in with the sole aim of maximising disruption, in order that they get their meeting broken up—in essence, they get thrown out—and then they can sue. This would be, by definition, extremist groups on the fringes. That would be, and has been in the past, a tactic employed. There was a whole period of time when various extremist activists were trying to do this. With this Bill, they would have a perfect opportunity. So this small tweak, giving that flexibility to a university, would have a profound impact.

There is one other good reason. If one wanted to be politically aggressive, when booking a room one could insist that an anti-Israel meeting, to use one example, was located in a room next to a synagogue or the Jewish chaplaincy. That would seem egregious to me. It could be—this happens a lot in the United States at the moment—directly in and among the Jewish student accommodation, the Hillel accommodation, which would be more than egregious. To give universities the flexibility for that bit of common sense, which they apply routinely in these isolated examples, would be a way of stopping those unintended consequences and would help the Government in their objective and their free speech proposals.

[The Lord Bishop of Coventry]

My Lords, I support Amendments 5 to 7 in particular. I shall follow on from the comments of the noble Lord, Lord Mann, because I had similar concerns about unintended consequences. I wonder whether your Lordships would mind me sharing some rambling thoughts that have come through my mind. I was not going to, but the reference by the noble Lord, Lord Triesman, to nothing before 1680—I think it was 1680—strengthened me.

In many countries in Europe, today is Reformation Day. I happened to be in Dresden yesterday, where you cannot help but see the statue of Martin Luther, which I was admiring. That is not irrelevant to these discussions. The history of academic freedom in Europe—freedom of expression and of religion—will have different views about the Reformation, but I cannot help celebrating the fact that, 500 years later, the Roman Catholic Church and the Lutheran World Federation said that they agreed over the doctrine of justification by faith, which was the great thing that divided the Churches at that time. As this fascinating debate has continued, I could not help thinking that, if there had not been a suppression of academic freedom at the time, there may not have been that great bust-up, which caused a lot of tearing to society and Church. I simply share that to reinforce that which we are all committed to—academic freedom and freedom of speech—and to recognise that institutions did not always get it right. Certainly, the Church has not.

I have quite a lot of sympathy for what the Bill is trying to achieve and welcome these amendments. The flexibility that they suggest would be very helpful. They work with the grain of the Bill in trying to encourage and enable robust and vigorous discussion and debate, and there are some sensible proposals.

My concern, perhaps slightly similar to that of the noble Lord, Lord Mann, was that an unintended consequence could be that spaces designated for pastoral, religious and spiritual needs might find themselves appropriated by bodies that would be offensive to those. I do not imagine that that was necessarily a concern of the noble Lords, Lord Willetts or Lord Stevens. I am really grateful to the Minister and his team for the discussions that I have had with him, particularly those assurances that I have been given that taking such steps as are “reasonably practicable” requires a careful consideration of how other legislation applies here, such as the public sector equality duty or the Prevent legislation. I would be very grateful for any further assurances that the Minister felt able to give.

I welcome that the amendments would provide the flexibility to help providers know that they were not cancelling a particular body because of its beliefs, even though they might be offensive to a particular body, but rather providing another space. I would also be very interested to hear any further assurances the Minister might be able to give on how guidance to the Office for Students on navigating some of these matters might be best given, and what other wisdom or what other bodies might help to advise on that.

--- Later in debate ---

Tabled by

[Lord Mann]

6: Clause 1, page 1, line 18, leave out first “any”

[Lord Mann (Non-Afl)]

In not moving the amendment, I just say to the Government that sometimes, in government and politics, simplicity is best. If the word “any” stays in the Bill, people will read that and it will create additional conflict in advance for universities. I hope the Ministers will take that away and consider it.

Amendment 6 not moved.