Higher Education (Freedom of Speech) Bill

Lord Moore of Etchingham Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Lord Moore of Etchingham (Non-Afl)]

My Lords, like many noble Lords, and indeed like the noble Viscount, Lord Eccles, who has just spoken—my instincts are as he expressed—I have a certain prejudice against this Bill. That is how I originally approached this matter. I felt that free speech is so deep-rooted in the life of our universities that it needs no legal protection. I feared that statutory intervention in this area could prove cack-handed and, indeed, counterproductive. The noble Lord, Lord Willetts, reinforced that with his point about the online harms Bill: the contrast between that and the freedom of speech Bill seemed to be a very fine example of that doctrine of cakeism for which our Prime Minister is known—having your cake and eating it; doing two opposite things at once.

I have thought about this quite a lot, and I have come to think differently and to feel more strongly in favour of the Bill, for two reasons. The first is a matter of historical fact. We need to recognise that even our most ancient universities have not invariably upheld free speech. There are innumerable examples of this, but one that strikes me is that 150 years ago, roughly speaking, John Henry Newman, the future Cardinal Newman, famously converted to Rome. That is a very important event in the history of Christianity, but what is not remembered is that one of things he had to do when he did that was to resign his fellowship of Oriel College, Oxford. At that time, one could not say anything that denied Anglican beliefs if one worked at the University of Oxford. That is not an incredibly long time ago, so the freedom of speech that we hold so dear is actually something that really came about only in the late 19th century in our universities. By the same token, if it came about quite late, it could also go away quite easily: I do not think freedom of speech is necessarily as deeply ingrained as we might imagine.

But my second and more urgent reason for coming round to this Bill derives from my recent study of what has been happening in Cambridge. I do think that it is important to go through in some detail what actually is happening in universities in order to understand this. I should explain that Cambridge—I do not know if this counts as declaring an interest—is my own university, and many members of my family have been there. Indeed, my great, great, great aunt, Barbara Leigh Smith Bodichon, was the co-founder of the first women’s college, Girton. I love the place dearly, but I must say I have become alarmed about it.

More than two years ago, through a bit of journalistic research, I found out that Jesus College’s China Centre, far from providing academic study of that great nation, was pumping out what amounted to Xi Jinping propaganda. Its website used his own slogan “national rejuvenation” to praise his work. It gradually emerged as I started to ask more questions that the China Centre was financed by Chinese regime money and never invited critics of the Chinese Communist Party on to its platform. By this time, Covid was spreading from China throughout the world, but the China Centre had nothing to say. Had its silence, I wondered, been bought? I think perhaps it had—an astonishing thing that it could have happened in a great university. I must say I am glad that new Section 69D, I think it is, in this Bill—though I understand the worries of the noble Lord, Lord Johnson, about the detail of it—will make sure that there is provision so that we can understand if money is coming from foreign regimes. That is very important, particularly in the case of China.

I further discovered that this engagement with a communist regime was not the frolic of one college but was strongly backed by Cambridge’s vice-chancellor, Professor Stephen Toope, who had himself spoken in Beijing about his admiration for President Xi’s polices. I found that all my inquiries about these matters were fiercely resisted by the university and college authorities, I have never to this day been allowed to interview or speak to the director of the China Centre, Professor Nolan.

So it was in this context that I became interested in the universities’ current attitude to free speech. In 2019, the controversial conservative thinker Dr Jordan Peterson had had the offer of a visiting fellowship withdrawn because it was said his views might upset students. But on the other hand, Dr Priyamvada Gopal, a fellow of Churchill College, was very differently treated. After she was criticised online for tweeting the words “White Lives Don’t Matter”, she was immediately made a professor. Not long after that, in December 2020, Professor Toope promulgated a new definition of free speech which he wanted the university to adopt. It insisted that freedom of speech must be qualified by the need to be “respectful” of the opinions and “the diverse identity” of others. Freedom of speech was no good, he said, if people were

“made to feel personally attacked”.

Critics of Professor Toope’s approach did not, of course, support personal attacks, but they did point out that if being personally attacked was to be defined by the feelings of the alleged victim, then the effect would be to give any objector a veto on free speech. Despite backing for the Toope definition from the university establishment, the dons, led by Professor Arif Ahmed of Caius College, defeated it in a proportion of four to one, and the word “respect” in the Toope definition was replaced by “tolerate”, which is exactly right.

Now if that had been the end of it, I might have conceivably been voting “Not content” tonight, because self-correction would have prevailed without the need of law, but I was struck by what happened next. Professor Toope apparently accepted the revised definition, but six months later the university suddenly announced what it called a new reporting tool. This provided for the anonymous denunciation of those accused of “racism, discrimination, and microaggressions”. Its definition of racism included—

“a system of advantage that sets whiteness as the norm … and promoting (implicitly or explicitly) being white.”

If racism and whiteness were to be equated, some dons realised, no white person could ever be guaranteed freedom of speech: any exercise of that right could, by definition, be ruled racist. There was a fearful row about it and the Cambridge authorities muttered about how a template from other universities had somehow entered “certain ancillary material” into the system, and the reporting tool was withdrawn. However, in November, a Cambridge college—Downing—tried yet again, criticising “whiteness” and seeking to police not only conduct but beliefs. This document was slightly modified under protest but not withdrawn.

As the noble Baroness, Lady Fox, mentioned, this month, Cambridge University’s HR department put out what it calls a “mutual respect policy”. Although it insists that it contains nothing contrary to freedom of speech, it provides for mandatory training courses in which the concept of “respect” can be suborned to enforce or suppress certain opinions. I am afraid that, in many workplaces, HR is now becoming a politicised means of impeding free speech rather than caring for the needs of employees. I have taken your Lordships through this sequence because it shows a pattern to be found not only in Cambridge but across higher education, using co-ordinated materials and similar ideology.

Before the end of the last century, the concept of institutional racism was officially recognised. Today, I fear that a culture of institutional repression has grown up, most severe in the place where it should be least expected: our universities. It rarely attacks free speech directly but that is its intended effect. It exploits our proper concern to achieve the fair treatment of individuals —especially ethnic minority individuals—as cover for its purposes. I have witnessed how the leadership even of a university as great as Cambridge has allowed this to happen. I feel that Parliament is well justified in stepping in to arrest this repressive trend before it is too late, and I therefore support the Bill.

Higher Education (Freedom of Speech) Bill

Lord Moore of Etchingham Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Baroness Shafik (CB)]

My Lords, I speak in support of Amendment 22, to which I have attached my name. I declare my interest as director of the London School of Economics and Political Science. It is a great pleasure to follow the noble Lord, Lord Willetts, whose remarks I very much agree with. I also thank the noble Baroness, Lady Barran, and the noble Earl, Lord Howe, for the constructive way in which they have engaged with all of us throughout the passage of this Bill.

It was made clear in Committee that Clause 4, as drafted, was not fit for purpose and that statutory tort would provide an avenue for vexatious, costly and damaging cases to be brought against universities by troublemakers far more concerned with self-promotion than free speech. The clause would have the perverse effect of limiting free debate and exchange of ideas on our campuses by creating exactly the kind of chilling effect that it aims to prevent. Student unions in particular would be frightened of inviting anyone at all, given this risk of lawsuits.

LSE hosts literally hundreds of events every year, which are all open to the public, and as its director, I have chaired hundreds of them. We work very hard to foster an environment where free speech and critical thinking are encouraged. I feel strongly that the solutions to the chilling effect, which I acknowledge exists, lie in education, dialogue and codes of practice, not the courts. Peers in the US, a far more litigious country than ours, are now petrified of inviting any speakers at all for fear of the consequences they may face. I fear that this legislation could take us to a similar position.

I was grateful that Ministers acknowledged that changes were needed and that significant revisions have been tabled on Report. Despite those positive moves, which are very welcome, I am still convinced that Clause 4 remains both unnecessary and potentially very harmful. I believe analysis and redress should be overseen by the regulator, as the noble Lord, Lord Willetts, has said. The existence of the tort system would call into question the working and judgment of that regulator, as well as universities’ own procedures. It would open up our institutions to potentially long, drawn-out and unnecessary complaints brought by individuals with axes to grind, time on their hands and, potentially, the financial backing of those with an agenda. I do not believe that having to go through existing complaints procedures would deter those kinds of individuals.

The potential costs of time, effort and money in highly constrained circumstances are unduly high. Of course, we would have to ask about loss, as the noble Lord, Lord Grabiner, very eloquently noted. Who has sustained this loss? It is still very indeterminate and the legislation as drafted does not require that loss to be material. Is it monetary, reputational or temporal? Is there a minimum threshold for the loss? Could it be the price of hurt feelings or the unquantifiable effects of media attention? All those things are highly intangible. There is still far too much uncertainty and confusion, and too much potential for this tort to be misused or have the perverse effect of stifling freedom of speech, which would be contrary to the other, more meritorious, objectives of this legislation. I concur with the proposal to remove the tort, as I believe it will be counterproductive.

[Lord Moore of Etchingham (Non-Afl)]

My Lords, I cannot call the noble Lord, Lord Willetts, my noble friend because I am non-affiliated, but outside this House, I call him my friend. He has been my friend for 45 years. I can testify that his well-known nickname is correct and that he does have double the cerebral capacity of the rest of us, so we should all listen very carefully to anything he has to say.

However, although he made many good points, I do disagree with his conclusion. We must not lose sight of the wider context, and I think there is a slight risk that we might do so in some areas of this House. There is a danger of us suffering from what economists call producer capture. By that, I mean that there are a great many people here who are very close to the top of universities. It is not very surprising that they all tend to think that universities are running themselves quite well and that it is all basically all right. However, I think there needs to be a little more power for the voice of the ordinary student and the ordinary, not-very-important academic who is having a rough time. I was very grateful for and impressed by some of the points made about that by the noble Lords, Lord Macdonald of River Glaven and Lord Hunt of Kings Heath, in particular, who really tried to bring home the reality of these difficulties.

Going back to why the Bill exists at all, it is to do with the fact that the traditional freedom of speech ethos in universities came under threat. In the past, threats to academic life came from without but now they are coming from within. That is the essence of the problem and why the Bill got going. Even though there have been some changes and alterations of behaviour—for example, the establishment in Cambridge University was defeated in its attempt to suppress free speech and real free speech won—there are still examples.

In Cambridge quite recently, the master of Gonville and Caius College—I think she did not fully understand that the word “master” in the Cambridge or Oxford circumstances is a misnomer and you cannot issue orders at all; it is a very unmasterly position—said that the presence of Helen Joyce speaking in that college would be hateful and that, on those grounds, her talk should not take place. I believe that Helen Joyce would not have been allowed to speak had it not been for the fact that Professor Arif Ahmed, the great leader of free speech, was a don in that college and stood up for Helen Joyce, so the meeting finally took place.

There is a problem, and it has not been sufficiently acknowledged by everybody here. Therefore, it seems that there has to be in the Bill—as there was and to some extent still is—some form of deterrent. There has to be something that goes beyond the universities themselves to make them feel a little nervous about where they have got to. Since universities are currently failing in many cases to uphold the duty of free speech, we cannot just depend on people such as the expert regulators, to which the noble Lord, Lord Grabiner, referred.

The idea of a new tort is to change that. The law of tort offers remedy to private citizens when private duties are breached. This is as opposed to the upholding of more general aspirations, as might be achieved, for example, by judicial review. This difference has not been sufficiently acknowledged in some of the things that have been said. If an academic could bring timely action under a statutory tort, that would concentrate the mind of the university at which he or she worked. That university would face a real deterrent to impeding his or her free speech, because a county court could find against it, with legal, financial and reputational consequences. As the noble Baroness, Lady Shafik, said, I do not quite understand how the prospect of some suit about free speech would frighten people who were inviting people in the cause of free speech. If, however, free speech complaints must always be brought first to an internal complaints procedure, the university will be tempted to mark its own homework favourably or to spin out the process. Early complainants will then retire exhausted and later, prospective ones will not even bother to start.

I add that the Office for Students, on which much reliance is being placed, is not necessarily the best arbiter. As its name suggests, it is for students. The people at universities for whom the free speech stakes are highest are not undergraduates but career academics. The statutory tort, pursuant to which injunctive power could be exercised, would give them the strong protection they increasingly need. I therefore oppose the amendment in the name of my real friend, the noble Lord, Lord Willetts, and support the amendments in the name of the noble Lord, Lord Moylan.

[Baroness Smith of Newnham (LD)]

My Lords, I do not want to detain the House too long because I realise that there will be a move to a vote relatively soon. I support Amendment 22 and will politely say a few words against the noble Lord, Lord Moore, if I may respectfully put it that way.

I am an academic at the University of Cambridge, I signed the amendments put forward by Professor Ahmed and I believe in free speech. However, I am concerned that the idea of a tort will do exactly the reverse of what the noble Lord, Lord Moore, just said. If we want to support the junior academics and students, the way to do that is not to have a legal procedure. As a noble Lord on the other Benches mentioned, the people who will benefit most are the lawyers; the people least likely to be able bring these legal cases are students and junior academics, particularly junior academics at an early stage in their careers. Therefore, the whole idea of a tort will do exactly the opposite of what the noble Lord just implied.

I absolutely agree that we need to listen not just to heads of Oxbridge colleges, chancellors and vice-chancellors of universities, and people like me. However, I hope I speak on behalf of students, members of the casualised part of university staff and other academics in saying that this legal provision will not benefit individuals because those who will have the resources to fight are the university bureaucracies, not individuals.

Higher Education (Freedom of Speech) Bill

Lord Moore of Etchingham 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.