Higher Education (Freedom of Speech) Bill

Lord Moylan Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

[Lord Grabiner (CB)]

My Lords, I will be brief. In his remarks, the noble Lord, Lord Mann, gave some extremely significant examples. Some very bad stories are no doubt out there but, with great respect, might it not be more appropriate for such matters to be dealt with in the code of practice rather than in primary legislation? It seems much more sensible to deal with this by way of advice to, for example, university institutions.

[Lord Moylan (Con)]

My Lords, I take great pleasure in speaking immediately after the noble Lord, Lord Mann, and other noble Lords who have spoken on this topic. I am delighted that my Amendment 35 has been grouped with this interesting debate but I will be taking the discussion in a slightly different direction, which explains my hesitation at leaping in at this point. None the less, I am on my feet and will speak to Amendment 35 in my name, which is in this group.

At least some of us who were in Committee on Monday began to wonder how much this Bill would achieve by way of change, both culturally and in practice. I say that by way of introduction to my remarks on the amendment because I am coming to the question of how the Equality Act is interpreted in connection with the duty, which already exists under the 1986 Act, on universities to protect freedom of speech and freedom of expression. I remind the Committee that, under the Equality Act, all public bodies have a broad duty to

“eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act … advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it … foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

The 1986 Act, as I say, has the obligation to protect and advance free speech but, in recent years, we have found that the Equality Act obligation is frequently being interpreted by universities as a reason to take steps to impose their views on equality, diversity and inclusion both on students and in public events. We have seen, for example, gender-critical feminists being turned away precisely because universities have interpreted their presence as contrary to their own public sector duty under the Equality Act.

Amendment 35 does not excuse universities from their public sector/public body duty under the Equality Act—they remain required to fulfil that broad duty. But it does insert a university-specific balancing requirement that requires universities also to have regard to free speech in interpreting this duty. This is a balancing amendment that ensures that potentially contradictory public law duties do not clash with one another. It is for that reason that I advance it but, to be honest, if we do not see something like this happening at various points in the Bill, it is hard to see how current practice and culture will change at all. With that in mind, I recommend Amendment 35; I hope that the Minister will be able to give wholehearted agreement.

[Lord Smith of Finsbury (Non-Afl)]

Might I ask a question of the noble Lord? He spoke about how he was anxious to have the duties under the Equality Act and the duties under freedom of speech promotion sitting alongside each other, but his amendment refers to having

“particular regard to the duty”

of freedom of speech. Does that mean that the duty of freedom of speech would overtake the duties under the Equality Act instead of sitting beside them?

[Lord Moylan (Con)]

My Lords, that is not the intention. The use of “particular” arises because universities, both as universities and as public bodies more generally, have a range of obligations under the law. All the wording is intended to do here is to say that that particular obligation needs to be taken into account because this Bill relates to freedom of speech in academic bodies. It is not intended to give priority; it is intended to draw attention to, and have particular regard to, that matter.

In natural language—this is of course legalistic language, to some extent—one would say “to have regard particularly to that as among the other obligations that universities have”, but this is how it is expressed in legal language. I assure the noble Lord that the intention is not to trump one over the other but to require a balancing of these existing obligations and put that requirement in the Bill. At the moment, although it might be said that they both exist and it is for universities to balance them, universities are not balancing them in a way that satisfies the intentions of this Bill.

[Baroness Fox of Buckley (Non-Afl)]

I will speak to Amendment 35, to which I have put my name; it relates to amending the Equality Act, as has just been discussed. I will also speak in support of Amendment 69 in the name of the noble Lord, Lord Sandhurst, which would strengthen the academic freedom protections of the Prevent duty.

I start with Amendment 69 on Prevent. On Monday, a noble Lord—I think it was the Minister, the noble Earl, Lord Howe, but I cannot find it in Hansard so I cannot say; I wrote it down at the time—said that there is no place on campus

“for extremist views that masquerade as facts”.—[Official Report, 31/10/22; col. GC 21.]

I do not know who said that but somebody did, and it is quite a frequently said thing. I want to probe who the extremists are; indeed, I want to probe who the fact-checkers are in this instance.

During his first unsuccessful leadership bid, the present Prime Minister suggested an expanded definition of extremism to include anyone who hates Britain. It hit the headlines for a while, with people going around saying that there would be Prevent orders thrown at all sorts of people who might have been heavily critical of Britain or the UK. He backed off from it, but my point is that the whole concept of extremism has become so elastic and broadened that it has discredited whatever it was that Prevent was trying to do.

I have had a problem with the Prevent scheme since its inception. Such is the nature of today that, as this is recorded and in Hansard, I want to make it absolutely clear that this is not because I have any soft sympathies with Islamist terrorists of any nature; in fact, if anything, I think that the Government have been rather lackadaisical in not dealing with them more harshly. Putting that to one side, I was always worried about Prevent, particularly in an educational setting.

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[Lord Smith of Finsbury (Non-Afl)]

I think we are entering dangerous territory if we seek to argue that one bit of law is more important than another. Upholding the duties that are placed on a university generally is something that universities have to do. Giving universities the task of balancing the requirements placed on them under legislation is the way we ought to go.

[Lord Moylan (Con)]

I think the noble Lord slightly missed the point made by the noble Baroness, Lady Fox of Buckley. She was not suggesting that there are various legal duties and one is more important than another; she was making an ontological point about what a university is. Freedom of expression and freedom of speech are built into the DNA of a university. This is not simply a matter of balancing legal obligations. The point she was making is that privileging it is absolutely appropriate because that is what universities are for.

I want to make a further point, if I may. I hear this quite a lot from those who object to taking this forward. Do noble Lords recognise that there is a problem? The noble Lord will have his own experience of academic life, although I appreciate that he is speaking in a personal capacity. The free speech protection duty was last expressed in statute in 1986. The difficulty is that, whereas in 1986 the universities saw it innately as their duty to protect freedom of speech, the years have moved on, and now the university authorities themselves are oppressing free speech—not in every case, of course, but it is tending in that direction. So the circumstances have changed, and the need for some sort of balancing is apparent to many of us but seems not to be to those who speak, to some extent, even if in a personal capacity, on behalf of the academic community. That surprises us.

[Lord Smith of Finsbury (Non-Afl)]

I would not fundamentally disagree with either the noble Lord or the noble Baroness about the free exploration of ideas and knowledge being central to the purpose of a university; that is almost self-evident. However, we need to ensure when we are putting legislation through the House that we are not imposing impossibilities on the people who lead universities, making it very clear to universities, colleges and student unions that they have a responsibility to promote freedom of speech and a responsibility to promote respect for all students within their community, for example. That is a sensible approach to ensuring that the Bill achieves what we all might want it to achieve.

On Amendment 69, I have a lot of sympathy with clarifying the Prevent duty in the way that the amendment suggests. That might be a rather useful way of ensuring that Prevent becomes rather more sensible than perhaps it has tended to be over the last few years.

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Moved by

[Lord Moylan]

31: Clause 1, page 3, leave out lines 32 to 36 and insert “have particular regard to the need to—
(a) eliminate unlawful interference with freedom of speech within the law and academic freedom,(b) promote and prioritise the particular importance of freedom of speech within the law,(c) promote and prioritise the academic freedom of academic staff of registered higher education providers and their constituent institutions, and(d) foster a culture of free thought and open-mindedness,sin all decision-making concerning the provision of higher education and in conducting and managing research activities.”Member’s explanatory statement
This amendment seeks to clarify the steps providers will need to take in order to promote freedom of speech and academic freedom.

[Lord Moylan (Con)]

My Lords, I rise to continue my minute and curious search for means by which the Bill might achieve some noticeable change. I notice I am grouped with an amendment from my noble friend Lord Willetts which appears to be there to ensure no such change is actually achieved in practice or cultural outcomes, so I think we are well matched. I will continue on this hunt for the prospect of change. In this case, I am not suggesting we amend any other legislation or duty, so noble Lords resistant to change will have to find different arguments to respond to me.

This amendment would amend not existing legislation but the text of the Bill. In new Section A3, the

“Duty to promote the importance of freedom of speech and academic freedom”


is defined in a manner which is pleasing to the Government. It simply says that it is there to promote

“freedom of speech within the law, and … academic freedom for academic staff of registered higher education providers … in the provision of higher education”.

This is insufficiently clear on which duty is being imposed on universities that does not exist already.

Amendment 31, which I have put forward, specifies what we expect universities to do as a result of the passage of the Bill into law. I will not read out everything it says, but it is there to

“eliminate unlawful interference with freedom of speech within the law and academic freedom … promote and prioritise the particular importance of freedom of speech … promote and prioritise the academic freedom of academic staff … and … foster a culture of free thought and”

open markets—sorry, “open-mindedness”. There is nothing wrong with promoting open markets either, but as it happens that is not the wording of this amendment. I am attempting to make clear what it is that we expect universities to do as a result of this duty to promote academic freedom, which the Government agree should exist but have defined in a manner which leaves the whole thing completely open.

There is an acid test to apply to this, which is the case of Dr Kathleen Stock. I do not know her, and I know nothing of her case that I have not read in public sources, so I am not making a special plea on her behalf. I am simply taking the story as emblematic. In her case, the university—I think it is fair to say—did not do some of the things it should have done to protect her and her rights. That could easily still be the case, especially with the amount of time that universities will have to spend on the astonishingly complex calibration of duties and obligations, which are apparently going to remain wholly unamended by this Bill. It has let her down.

The acid test is whether this clause would have protected a reputable academic from losing her post after expressing views which were objected to on essentially ideological grounds. My view is that, as drafted, it would not. The amendment I am moving would and I hope the Government will be able to explain why it should not be adopted when what they are doing is clearly not enough. I beg to move.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I should notify the Committee that, if this amendment is agreed to, I will be unable to call Amendments 32 or 33 owing to pre-emption.

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Given that, I do not think that the changes proposed by my noble friend are needed as this is not about advice on compliance with the new duties imposed on providers and colleges. This is a general provision about good practice, and as such, it is not necessary to make it a requirement rather than leaving it to the discretion of the OfS. I hope that that explanation reassures my noble friend and noble Lords as to how the provisions on the promotion of freedom of speech, and of the importance of freedom of speech, will operate.

[Lord Moylan (Con)]

My Lords, I am grateful to all noble Lords who have spoken in this debate. I hope they will forgive me if, in the interests of time, I respond only to the comments made by my noble friend Lord Willetts.

First, I must congratulate him on his masterpiece of oratory whereby he implicated our noble friend the Minister in his view such that it would appear almost churlish, by the time the Minister came to respond, that he should disagree with my noble friend on almost any matter at all. I have much to learn from him in that regard.

However, I wish to turn to one point made by my noble friend Lord Willetts. It has struck me with increasing force because it builds on something said earlier by the noble Baroness, Lady Falkner of Margravine, and other noble Lords: that nothing will be changed by this Bill and all change will be achieved by the code of conduct. That seems to be the message; in fact, it was almost explicitly the message given by my noble friend. I have been in your Lordships’ House only a couple of years but the tendency I have seen here is to say that, where guidance of a binding character is to be issued, we should scrutinise it and set the terms for it. When it came to what the College of Policing is doing about non-crime hate incidents, it was a united view across the House that the guidance issued by the college should become statutory guidance precisely so that we could scrutinise it.

Here, however, we seem to be taking a completely reverse approach. Nothing must appear on the face of the Bill, and everything must be left to the guidance to be issued by the Office for Students. As far as I can tell—I am open to correction by noble Lords—this guidance is not to be the subject of parliamentary scrutiny nor issued through the “made affirmative” process as a statutory instrument. It is not to come to our attention in any way at all. We are simply abdicating all the guts of the Bill to the Office for Students in how it will apply. I simply say to my noble friend that I find this really rather strange. I am tempted to suggest to him that, if my amendments were reformulated not as obligations on universities but as obligations on the Office for Students to include those things in the guidance, his principled objection would fall away—or is he absolutely determined that the Office for Students should have a completely free hand, with no parliamentary scrutiny, in how this Bill will be implemented if it becomes an Act?

I raise that as a challenge to what I might call the forces of institutional conservatism, which range across the Room—those who wish to see nothing change. Are your Lordships really suggesting that change can be achieved only by abdicating our responsibilities to a relatively new public regulator?

[Baroness Chakrabarti (Lab)]

I congratulate the noble Lord, if I may—he congratulated his noble friend in what became an absolute tour de force of a response itself. I have huge sympathy for his general proposition that in this place we allow too much not to be in the statute book and delegate far too much to secondary legislation and even to guidance. It is often something that we do when we are giving overly broad powers and we have made a bit of a mess of the legislation—“Don’t worry, it’ll all be sorted out in guidance.” However, I have to say, in fairness—perhaps I have become part of the new forces of conservatism; that I am now considered a conservative will show you how much politics has moved to the right in this country—that there is a qualitative difference between coercive police powers and pedagogy and creating a culture of learning and inquiry in an academic establishment, which would be very hard to legislate for at the level of detail that I personally would like something such as police powers to be provided for. I have huge sympathy with the noble Lord’s general proposition that bad law leaves a lot of stuff to be dealt with later invisibly by guidance but I am not sure that the analogy with police powers and creating cultures in universities is quite comparable.

[Lord Moylan (Con)]

I have to say that I am sinking in sympathy on the general principle in this Committee, which is coming at me from every side. Nobody lacks sympathy with what I am saying—in general. It is only in the particular that they object to what might be put forward to practical effect—I am always open to the charge that I may have erred in drafting and may have got the wrong approach, and all that—but without substituting any particular proposal for the ones that they particularly find objectionable in my case. I agree that it is not a suitable parallel. Coercive police powers are not a suitable parallel with pedagogy—I picked it off the shelf—but they are perhaps a suitable parallel with somebody being driven out of their job because of particular views, because that too is a coercive act. If they are not defended from being driven out of their job, and we are simply saying that it will be dealt with by guidance and not in the Bill, what are we doing? They are skewered, because they now admit the need for change but they want it done by somebody else.

I now come to my noble friend the Minister, because I really must wrap up, and we have to move on.

[Baroness Smith of Newnham (LD)]

My Lords, surely there is a difference between something that is appropriate as guidance, where right-minded people would think that guidance was appropriate, versus Henry VIII clauses, where Ministers are seeking to grant themselves sweeping powers over which there is no scrutiny. What we are saying here is not, “Let’s grant Henry VIII powers to a Secretary of State”, but rather that there are appropriate places for things, and on this occasion, guidance is the appropriate place.

[Lord Moylan (Con)]

It is absolutely clear that of course there is a difference between guidance and Henry VIII powers but we are not in that field here. We are talking about what our contribution is as legislators and the fact that, on what we acknowledge to be tricky and difficult issues on which the public and leaders of universities would like to know our views, we are saying, “We aren’t going to agree on any of that. We’re going to give it to a body where we have no say and where there is no supervision for us at all, and we will trust them.” Frankly, it is a cop-out.

None the less, I am going to move to a close and thank my noble friend the Minister for the careful consideration that he gave to my amendment. I think that in some ways he is encouraging me to redraft it better for Report, as he pointed out its various flaws. He somewhat failed the acid test I set him of how his clause as currently drafted would deal with the situation of Professor Kathleen Stock. The noble Lord, Lord Grabiner, said that frankly it did not need to because existing provisions already do so and it was simply a failure of the university to apply them. If that is the Minister’s view, I think he should say so. Still, I am grateful to him because he gave very careful consideration to the amendment. With that, I beg leave to withdraw the amendment.

Amendment 31 withdrawn.

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Moved by

[Lord Moylan]

34: Clause 1, page 3, line 36, at end insert—
“A4 Duty to secure freedom of speech and academic freedom: funding and grantsThe governing body of a registered higher education provider must take reasonable steps to ensure that grants of funds by the provider for the purposes of academic research are not refused to—(a) any individual member or group of members of staff of the provider,(b) any member or group of members of the provider, or(c) any student or group of students of the provider,on the grounds, solely or inter alia, that such persons adhere to or propagate any particular lawfully-held principle or political opinion.”Member’s explanatory statement
This amendment prevents discrimination in the distribution of research funding by higher education providers based wholly or in part on the lawfully-held principles or political opinions of the potential recipient.

[Lord Moylan (Con)]

My Lords, I struggle on, looking for the prospect of meaningful change. In this case, unlike the previous groups—in one I was seeking to amend an existing statute, while in the last one I was merely seeking to amend the wording of the current Bill—I am motivated by a sense of a lacuna on reading the Bill, particularly at Second Reading, and I made mention of this at the time.

It is a well-known fact that what makes the world go round is money. Money is a very sensitive subject when it comes to universities. It used not to be—it used to be that anyone in a university who mentioned anything as vulgar as money would not be invited back to high table—but now money is an important consideration. The Bill is not silent on money, of course; it has a section on overseas funding. It is not to that section that I am turning my attention. The lacuna that I referred to is that it appears to say nothing whatever about funding coming from domestic sources.

This series of probing amendments—if the Committee wishes me to refer to them, Amendments 34, 45 and 46—try to box the compass, so to speak, of the various sources of money and how they can be used to prohibit free speech. Amendment 34 discusses grants made by universities to academics working for them or within their ambit. Amendment 45 refers to grants made downwards, so to speak, by UK Research and Innovation. Amendment 46 relates to donations that are made to universities. All of these could be used in a manner that was intended to influence, limit or shape freedom of expression within a university.

Sometimes we actually welcome that. I notice that it is a normal condition of cancer research charities that recipients do not have anything to do with tobacco companies. Many noble Lords would welcome that; they would say it was a good interference with freedom of speech and freedom of action attached to a flow of money as a condition. However, once one grants that, one ends up asking where to draw the line. These amendments are intended to test the role of money in doing that.

It has been suggested that Amendment 45 could trip over the Haldane principle, which dates from nearly 100 years ago but is still very properly entrenched in our constitutional process—that decisions on grants for research purposes should not be made by Ministers but must be made independently, and therefore to legislate on the matter at all is to offend the Haldane principle. But it is not, of course, because nothing in my amendment gives Ministers any power at all. There is nothing in the amendment that even relates to Ministers. Rather, it says that we as Parliament would be creating conditions, which we already do, for the operation and manner of operation of UKRI. I do not believe that Amendment 45 conflicts with the Haldane principle at all. I would very much like to hear my noble friend the Minister respond, so I shall not go into further detail.

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I trust that those noble Lords who have proposed amendments in this group are reassured by this explanation, which makes it clear, I hope, that the Bill already covers impartial research funding as required.

[Lord Moylan (Con)]

My Lords, given the hour, I will be brief on this occasion. I am grateful to my noble friend the Minister for explaining that, despite the fact that there is no explicit mention in the Bill of the large and important topic of money and how it makes universities go round, it is there; it is just that none of us had spotted it. Let us hope that those who are directly within the ambit of the Bill, if it becomes an Act, will be able to spot it. I would have thought that it would have been helpful to have a few words in the Bill to that effect but, no, it is there—only in a subterranean way. So we must all take comfort from that.

I am very grateful to all noble Lords who have contributed. I am particularly grateful that, on this occasion at least, they agree with me that this is an important and large topic. I am simply disappointed that, at least for the two Front Bench spokesmen, it is simply too large to put in the Bill. It is too big; it is too complicated; it is very important but—

[Baroness Smith of Newnham (LD)]

I did not say from these Benches that it was too big to be included. I suggested that there needs to be more discussion and clarification of the issues at stake because they are even broader than the noble Lords, Lord Moylan and Lord Sikka, were discussing. That is not to say that they should not be included.

[Lord Moylan (Con)]

I am very grateful for that clarification, which I take as an encouragement to myself and the noble Lord, Lord Sikka, to enter discussions with the noble Baroness as we prepare for the next stage of the Bill to reach satisfactory wording on the topic.

Finally, I simply say how very grateful I am to everybody who spoke in the debate and managed not to say that it should be dealt with in the code of conduct. With that, and given the lateness of the hour—though I suspect the topic may come back—I beg leave to withdraw the amendment.

Amendment 34 withdrawn.