Higher Education (Freedom of Speech) Bill

Lord Moylan Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

I come back to my fundamental point: at the end of this, whatever we say and whatever mechanisms we put in place, the academic community has to own it. It has to say that the culture of free speech is fundamental, and it needs to know that that is what it lives and breathes by. It will listen to legislation, but if it does not embody it in its own culture, we will have failed.

[Lord Moylan (Con)]

My Lords, I will speak to the two amendments in my name in this group, Amendments 13 and 28. In doing so, I am conscious of speaking after the noble and learned Lord, Lord Hope of Craighead, with whom I agree on the matter of principle—a nice easy place for me—but disagree on the response of substance. It always fills me with trepidation to think that I am not on the same page as he is on some things.

I shall address the two amendments in the reverse order and speak to Amendment 28 first. That amendment should have been coupled with a proposal to delete lines 36 to 38 on page 2, which it appears to replicate in some ways; that will be corrected at Report, if we get that far.

The substance of what we are discussing is essentially clear. The noble and learned Lord, Lord Hope of Craighead, has rightly pointed out that the Bill lacks a clear definition of what is meant by free speech, and on that we agree. He proposes that the definition of free speech be tied to the convention right in relation to free expression. My view is that that does not take us far enough. The convention right is, first, subject to the jurisdiction of the European Court of Human Rights, which has a history of narrowing that definition over time and creating more exceptions—for example, for the protection of reputation, and so forth. Because it is one that can be appealed in the European Court of Human Rights, it is likely to be interpreted in a very legalistic way by universities and to lead to a great deal of litigation. As the noble Lord, Lord Triesman, rightly said, universities need to be persuaded to own this as a project and not regard it simply as a further aspect of the legal thicket through which they have to work.

There is also great advantage in having a definition of freedom of speech which is a British tradition and based on British notions of common law: the notion that you are free to express anything which is not specifically prohibited by law. That is a different approach, if I may say so, from the one being advanced by the noble and learned Lord, Lord Hope of Craighead.

Amendment 28 is an attempt to put that approach—the idea that you can say something as long as it is not prohibited by law—into statute. That is the essence of Amendment 28. It contains an exception for Holocaust denial, but otherwise I think it resolves this question of defining freedom of speech in a clear and unambiguous way. I say this without knowing any more than the noble and learned Lord does about the Government’s current intentions in relation to the Human Rights Act, but my definition would future-proof the Bill against any attempt to resile from the European Convention on Human Rights that might come forward in such legislation, if it appears.

I now turn to Amendment 13, which is an attempt to define what is meant by reasonably practicable on the part of universities. Here, as the noble Lord, Lord Triesman, has made clear, drawing on his experience as an academic, there has been a significant change over the years in the attitude of universities towards these tricky and difficult questions. As he says, some years ago, when he was perhaps a younger academic, university authorities themselves were committed to freedom of speech and it was they who would be protecting those who wished to express controversial and difficult appointments from the activist behaviour, riots or mobbish-type behaviour that might seek to close them down. As the noble Lord implied, the situation now is that, very often, the problem arises not simply from the student activists but more from the university authorities. We perhaps need a more directive approach, one that makes clear the burden on university authorities to protect free speech, as we can no longer rely on that innate instinct of theirs to do so.

As I said, Amendment 13 is an attempt to do that. First, it makes it clear that doing nothing is a reasonable activity—so that not intervening in order to close things down is a perfectly reasonable activity—and that there should be a clear obligation of tolerance on universities, allowing them to restrict only speech that harms the functioning of the institution. That is a vague phrase which perhaps could be improved in discussion as we come to Report, but I suggest that that latter category would include anti-social behaviour of abuse and insult, or destructive behaviour or racism. Those things could be taken to harm the functioning of the institution, but they would be narrowly drawn so that, in practice, the university had a legal obligation to defend people’s right to their free speech.

It is, if I may say so, a different approach—a slightly fresh and unusual approach. We are understandably so used to relying on the European convention as the basis of our interpretation of rights in the modern age, but our rights go back to well before the drafting of and our accession to the European Convention on Human Rights. We have a proper and correct, distinctly British approach to rights: the notion that one should be able to say something that is not prohibited by law and free to do so is a much wider notion than that imported in the European convention. I think it is a defensible one, and I think the notion in Amendment 13 of what constitutes reasonably practicable addresses the change in circumstances since the 1986 Act in a way that the noble Lord, Lord Triesman, identified. I believe it makes the fairly vague obligation on universities in that Act much clearer and much more deliverable.

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We will come on to the mechanisms of complex litigation later. I commend Amendment 2 from the noble and learned Lord, Lord Hope, and my noble friend Lord Triesman. While I disagree with the Government, I think they would be very wise indeed to accept it.

[Lord Moylan (Con)]

My Lords, it sounds to me that the noble Baroness is making the case for why Article 10 is insufficient. It applies already and it is not working. She has given a number of reasons why it is not working. It has not achieved the culture shift that—I think this is common ground—we believe needs to be achieved.

[Baroness Chakrabarti (Lab)]

Inasmuch as there is a limit to what any legislation can do without the resources and culture, clearly that is the case. This is an argument that people make against human rights all the time. My point is simply that, if you are legislating for free speech in any sector in this country, you have to make reference to the human right to free speech in this country. Our current legal regime means that that is Article 10.

[Lord Moylan (Con)]

With respect, I have not made a case against human rights. The definition I propose does not impinge on or restrict Article 10; it actually gives greater freedom and greater rights. I quibble at that point, because it is quite a serious point if it is being suggested that I am trying to impinge on existing rights. I am not.

[Baroness Chakrabarti (Lab)]

I beg the noble Lord’s pardon. I take the point, and I tried to make it clear that I know that he has a very libertarian instinct towards free speech, which I share. I tried to argue that his Amendment 28 is more restrictive than Article 10; that is a matter of the way that it has been crafted.

My general point is that if this area of complexity that we are entering is to be made even more complex and potentially incoherent by having two different definitions of freedom of speech—one for everyone in the country and in the Council of Europe, to some extent, under Article 10 and another in relation to universities only—then that is at the heart of the problem in a thoroughly problematic Bill.

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[Earl Howe (Con)]

We certainly hope that this will gain traction. I agree that in most circumstances it is better to encourage voluntary action, as long as it works. This is very much a work in progress.

We have also asked the Office for Students to create a new registration condition to ensure that it properly tackles sexual misconduct. This would have real teeth and would mean that providers could be sanctioned with penalties, suspension from the register or even deregistration. This follows the publication by the OfS of a statement of expectations for providers in this area.

I make the point that we are the first Government who are prepared to tackle this issue. I shall continue discussing with colleagues on both sides of the House how best we can tackle sexual harassment and misconduct in our universities. I therefore have no difficulty in committing to taking this matter away and looking at it further.

[Lord Moylan (Con)]

Does my noble friend wish to expand at all on my Amendment 13 about “reasonably practicable”? The essential point is that there is an existing duty in the 1986 Act that has two parts to it to take reasonably practicable steps to secure freedom of speech. If my noble friend’s position is that neither the definition of freedom of speech nor the definition of what is reasonably practicable is to be amended, why is he not frank in saying that there is no intention to change the current duty?

[Earl Howe (Con)]

I apologise to the Committee. I know that I have been speaking for a long time, but this is the very issue that I was about to come on to next, if my noble friend will allow me.

Amendment 13, which is the amendment that my noble friend was referring to, seeks generally to strengthen the test for what is “reasonably practicable”. It would mean that, in relation to speech of a political, philosophical or academic nature, it would always be reasonably practicable not to interfere; in relation to other speech, it would be reasonably practicable only if taking that step would prejudice the functioning of the provider. I hope that I have paraphrased the issue correctly.

The Government’s position, supported by the OfS, is that we stand for the widest possible definition of free speech—anything within the law—and that, where debate is particularly contentious, it is all the more important that everyone feels able to put forward their views and arguments and be heard, on all sides.

The “reasonably practicable” wording of the main duty means that providers can take account of all their legal duties on a case-by-case basis. But I must be clear that my noble friend’s proposed strengthened test goes too far in not allowing providers to take account of all the relevant circumstances, including their other legal duties—for example, to prevent unlawful discrimination or harassment, or to comply with the Prevent duty so as to stop students and others being drawn into terrorism. There may be occasions where it is not reasonably practicable to secure freedom of speech of a political, philosophical or academic nature, even if that speech is lawful, and we must not impose a test that has so few exceptions.

If I might address the point made by the noble Lord, Lord Triesman, about conspiracy theories, the question of whether espousing a conspiracy theory is lawful depends on what is said. If it is defamatory, it would be unlawful. The point of the Bill is to take a wide approach to freedom of speech as a fundamental principle in a democratic society, but there is nothing in the Bill to encourage baseless or harmful claims, or bad science, on campus, for example.

Amendment 25 seeks to clarify the position regarding balancing the right to freedom of speech with the right to protest. The purpose of the Bill is to protect freedom of speech, but the right to peaceful protest is a fundamental tool of civic expression and will not be curtailed by this Government. Of course, it can itself be an aspect of freedom of speech. If there is a protest against a particular academic because they have said something controversial but lawful, providers will need to decide what reasonably practicable steps they can take to ensure that the academic can speak freely.

The intended effect of the Bill is not to prioritise one right under the ECHR—that is to say, freedom of expression under Article 10—over others, such as the right to protest under Article 11. The requirement to have “particular regard” to the importance of freedom of speech builds on existing provision under Section 43 of the Education (No. 2) Act 1986 and could, in a particular case, prompt a higher education provider to prioritise freedom of speech over another convention right. However, this would remain subject to its assessment of what is reasonably practicable and would need to be lawful.

It is worth noting that a provider’s code of practice under new Section A2 must include the procedures to be followed when organising meetings and activities, as well as the conduct required in connection with them. This will ensure that staff and students are aware of their responsibilities as regards their own conduct.

The noble Lord, Lord Hunt, suggested delaying Royal Assent to allow universities due time. Let me confirm to him now that implementation of the Bill will not be rushed. Various actions need to be taken before the new regime can come into force, including consultation with the sector and the provision of guidance, so providers, colleges and student unions will be fully engaged and able to understand their responsibilities under the Bill.

I turn next to Amendment 30 in the name of my noble friend Lord Sandhurst, which seeks to ensure that codes of practice have a process in place for dealing with meritless claims against staff and students. It is an important point that providers should not have to spend time and resources responding to frivolous or vexatious complaints. However, I should make it clear that the duties in the Bill are imposed on the governing body of registered higher education providers. There cannot be complaints made under the Bill about the freedom of speech duties against staff, members and students of the provider, or visiting speakers, as the amendment suggests. Higher education providers will in any case have their own procedures already in place for handling internal complaints. As for burdens on providers, unnecessary bureaucracy can take up time that could be spent focusing on the academic experience and high-quality teaching, but these measures are absolutely necessary to protect the core value of freedom of speech and we consider that the duties imposed are proportionate and appropriate.

I hope my remarks have provided noble Lords with reassurance about the Bill’s approach regarding the main duties set out in it and that they strike the right balance.

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[Baroness Falkner of Margravine (CB)]

My Lords, I shall just deal with that. I am aware of very vigorous debate at Cambridge University, but I am not aware of the university having fired an academic for standing to defend free speech. In fact, most of the arguments at Cambridge currently are about academics who are standing up and saying to the former vice-chancellor that the current vice-chancellor is going to go and spend more time with his family and that they have had enough of him, more or less.

To my mind, the Bill could have been written in three pages. It almost goes into micromanagement of higher education institutions—autonomous institutions, we have to remember. To my mind, it makes a bit of a meal of a problem that I completely accept exists but could have been addressed in a slightly more constrained fashion. All the debates I have heard, and I read the Second Reading debate, had more and more people wanting to hang baubles on to the Bill to essentially make higher education institutions non-autonomous and to put them into a straitjacket whereby there will be a deeper constraint on free speech.

We will come to Clause 4 next time, on Wednesday or whenever, and we can talk about that then. It is a relatively good and carefully drafted Bill. We run the danger of adding so much to it—and it comes, as I said, on the back of several previous higher education Acts—that we will end up with the opposite of what we wish to see.

[Lord Moylan (Con)]

My Lords, I shall speak briefly in support of the noble Baronesses, Lady Fox of Buckley and Lady Falkner of Margravine, and my noble friend Lord Johnson of Marylebone in opposing Amendment 15. The noble Baroness, Lady Falkner, referred to the 50th anniversary of a seminal book. I think it would be odd if we got through a debate on universities without referring to the fact that it is roughly 170 years since Cardinal Newman published his lectures, known as The Idea of a University, probably the first attempt in the 19th century to define what a university looked like and what it was for. I have a familiarity with every single line of that book because, when I was a schoolboy, I proofread the standard current Oxford authoritative edition for its editor, Father Ian Ker. Indeed, a very minute examination of the acknowledgements would reveal that to be the case.

We are discussing this in a very modern way, but there are two things we can take away from Newman that really are very important and relevant to this amendment. The first is that the word “university” implies universal; that is, there are no bounds on the fields of inquiry to which a university can go. The second is that, for Newman, this is a collective endeavour. We are discussing this as if the advancement of knowledge was to be followed only by individuals with specific expertise in certain areas, and as if the sharing and communication of knowledge among them—be it through papers, through social engagement or simply through having dinner together and discussing things—was not a crucial part of that endeavour. I simply urge those two points at this stage. It seems to me that Amendment 15 is wholly misconceived as to how knowledge is advanced and what a university actually is and should be.

[Baroness Garden of Frognal (LD)]

My Lords, Amendments 15 and 16 were probing amendments, so I do not think my noble friend Lord Wallace will be totally mortified to discover that the entire Committee is not in favour of them.