Higher Education (Freedom of Speech) Bill

Lord Smith of Finsbury Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

[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.

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Lastly, on the amendment about the equality duty, I have some reservations and hesitations about the term “particular regard” in the framing of the amendment. Again, I ask the Minister—who corrected me on Monday when he suggested that I had talked too early about the question of how the proposed legislation links with other duties such as the Equality Act and the Prevent duty—if he could say at this stage how he envisages the different pieces of legislation interacting. Clearly there is a question of how academics or anyone else seeking to implement the proposed legislation will evaluate to what they should give most precedence. Is particular regard to the Equality Act something that is going to override the present legislation, or is this legislation going to take precedence? How should that be evaluated? While universities may have many lawyers, and there are clearly many lawyers in the Grand Committee, the people making the decisions on a day-to-day basis need legislation that is clear, and does not require people to have a whole set of manuals, in order to ensure that we have the academic freedom that everyone is seeking to ensure.

[Lord Smith of Finsbury (Non-Afl)]

My Lords, I remind the Committee of my declaration of interest as master of Pembroke College, Cambridge, although I am of course speaking in an entirely personal capacity.

I have considerable sympathy with the amendments tabled by the noble Lord, Lord Mann. I fear some of the practical consequences of the amendments as exactly framed, but the principle behind them seems to be rather an important one. The Bill is all about ensuring that universities do what they ought to be doing, which is encouraging and facilitating freedom of speech, expression and ideas, while also encouraging the contesting and debating of those ideas. That is what an academic process has to be all about.

There is a danger in some of the advocacy for this Bill in assuming that only one kind of freedom of speech, rather than all kinds, is to be encouraged and facilitated. Ensuring that what we do here enshrines the principles of contest and debate alongside the principle of freedom of speech is rather important. I am not sure that the precise amendments of the noble Lord, Lord Mann, get us there but it is important that we find a way of doing so.

Turning to Amendment 35, as I indicated in my intervention in which the noble Lord, Lord Moylan, kindly allowed me to ask a question, I am worried about the phrase “have particular regard to” the freedom of speech duty. Universities have to take account of an array of different bits of legislation, such as the Equality Act and the Prevent duty, and their responsibilities as employers under employment law. Now, they also have duties under freedom of speech legislation. They need to find ways of balancing those duties. Putting into the Bill language implying that the freedom of speech duty should trump everything else in all circumstances seems to present us with a problem. It should not.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I think the difficulty here—this goes back to our earlier discussions—is around what the purpose of a university is. The purpose of a university is not employment or fulfilling equality; it is the open pursuit of knowledge without any restraint to academic freedom. That is the purpose of a university. It should be a space distinct from somewhere else. Surely in some ways a greater privilege has to be given to academic freedom than to those other duties. What has happened is that this has become only one of the many different things that happen on campus so universities have forgotten that academic freedom is the core purpose of a university.

[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.

[Baroness Falkner of Margravine (CB)]

My Lords, I declare an interest as chair of the Equality and Human Rights Commission, as Amendment 35 specifically relates to the Equality Act 2010. I hope that my remarks will clarify the intentions of the noble Lord, Lord Moylan, as regards the Equality Act, because I have a great deal of sympathy with what he is attempting to do. I also have an enormous amount of sympathy with some of the comments of the noble Lord, Lord Smith of Finsbury, because, in a much more tangible way, they set out what some of the problems are.

I will speak very briefly. My first point is that the public sector equality duty is not specifically concerned with freedom of expression. Our assessment in the commission is that, although there may be some evidence —the point made by the noble Lord, Lord Moylan, is a strong one—that more recently this has become a tool used by universities to avoid their duties in terms of freedom of expression, nobody has mentioned that other part of the Equality Act and the public sector equality duty, which is the need to foster good relations between groups who share protected characteristics. Therefore, that duty—the need to foster good relations—allows those who wish to hide behind the public sector equality duty to use it that way. Universities sometimes tend to use the fostering good relations duty a bit too widely, but because it is not circumscribed and does not define what it means, they can so do.

We have guidance on freedom of expression for higher education providers and student unions across Britain. When a university considers whether to permit an event to take place, it must take account of all its statutory duties, as the noble Lord, Lord Smith, referred to. These include Section 43 of the Equality Act, Article 10 of the Human Rights Act, student unions’ obligations under charity law, and the Prevent duty, as well as the public sector equality duty. Balancing is therefore a necessary task that they must do. My sympathy with those institutions lies in the fact that, in every case, every decision will be different depending on the facts of the decision. In that sense, balancing will be a necessary exercise, irrespective of whether his amendment is accepted or not. Having “particular regard” nevertheless places it in a hierarchy.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I thought long and hard about how to approach this debate because I support the autonomy of students to organise separately without interference, not just the academic autonomy that we have talked about—although I would like that. I also appreciate the points that have just been made about students not being excluded from collegiate atmosphere; you want them to be involved in it. On reflection, though, I think that student unions need to be subject to this obligation to secure free speech. However, I appreciate what has just been said about the difficulties in that; I have no solutions but I want to raise some of the issues.

One of those issues is that student unions have become the power brokers of free speech in the new free speech wars on campus. That is the reality of the situation. They can—and often do—withhold affiliation for student societies on the grounds that they disapprove of their views. It makes them a powerful body in this discussion.

One story that really shocked me was when Kevin Price, a Labour councillor who was also a porter at Clare College, resigned from Cambridge City Council when he felt that his conscience could not allow him to vote for a Liberal Democrat Motion that began, “Trans women are women. Trans men are men”. I am not saying that to make a point; these are the facts of the matter. When they learned about his actions, student activists at Clare College, with the support of the college union—I confess that I do not know about Oxbridge because I went to Warwick, but I know that these are not necessarily student unions; my point is that I get confused—held a campaign demanding that this man resign as a porter. They described him as

“unfit both to hold public office and to be in a position of responsibility over students”.

They called him a bigot and a “potential risk” to trans students.

This campaign went on for some time. Nothing happened in the end—although, needless to say, it was very unpleasant for Mr Price—but here were student activists demanding that a member of staff, and not even a member of the academic staff, be sacked. I just think there is something about that story that we can recognise.

The only other story I want to tell involves a group of students at Sheffield University who tried to set up a free speech society in February 2020. When they applied to the student union, their application was declined. Theirs is not the only example of this, by the way; it happened at LSE, which got there eventually, and at Leeds University as well.

The group from Sheffield appealed to the student union. They won—they had some outside back-up—but were told that the student union had identified that the free speech society was on a “red risk list”. This meant that officers would have to attend risk assessment training and that they could not invite any speakers on to campus without first having to submit a list of prospective speakers to the student union three weeks ahead of time for full and final approval.

That is one of many stories that any of the people who have done work on this will tell you. I have been involved in lot of them. Students have contacted me, either through a free speech union or through any number of different activist groups. Despite what the noble Lord, Lord Triesman, asked—“How will all these societies cope?”—I assure him that they are already having to cope with a lot of bureaucratic nonsense if they want to invite anyone on to campus to speak, and it is the student unions demanding it.

I once went and spoke at a student event with 250 people. I was giving a lecture on free speech. By the time I arrived at the event, the students who had invited me—remember, these were 19 year-old kids who had set up a free speech society—looked ashen as if they had gone through a terrible experience. They had because they had had so much trouble about inviting me, but I did not know that at that point. They looked as if they were in trauma. When the event was going on, there were three people sitting in the front row with crossed arms and writing notes. I thought that they did not look friendly. I asked afterwards who they were and was told that they were student union officers who had come in to check what I was talking about to make sure that I did not breach any rules. That was disconcerting.

I then went to the bar and the same three people sat at the table next to us. I said, “Do you want to join us?” They said no, and then they sat at their table in silence. It was a bit like the Stasi keeping their eye out. The students who had invited me said, “That’s what they do. It’s an intimidation tactic”—and it really was intimidating, by the way. I am an old hand and I found it intimidating, so imagine if you are 19.

The outcome of the event was that I did not get them into too much trouble but it was felt that it was too near the mark, so the students had to go on training courses and all the rest of it. The outcome—this is the significant bit—was that the three people who had set up the free speech society at that university said that they were going to drop out of politics because they could not cope with the student union. They did not want the hassle. They had really enjoyed my speech but it was like an ordeal. As it happens, the Committee will be unsurprised to know that this has happened to a lot of students who have invited me to speak, to such an extent that I now warn them off from inviting me to speak and say, “Look, you don’t want the hassle, to be frank. It will cause you a lot of hassle.” So I do not get cancelled before I arrive because I know that it is probably not worth putting the kids through that.

The main reason why I am telling the Committee all this is that it is the student unions that are implementing all this. In that sense, my collegiate feeling towards student unions have evaporated somewhat, but my collegiate feelings towards those students who want to be politically active have extended. I am hoping that, by incorporating student unions and putting free speech at the forefront, this Bill might help students to be free to organise societies as they wish.

[Lord Smith of Finsbury (Non-Afl)]

My Lords, I should probably have declared an interest when I spoke earlier, not just as the master of Pembroke College, Cambridge, but as the chair of the trustees of the Cambridge Union Society. It is not a student union. It has been a place of free speech since 1815 and continues to be so. The student officers of the Cambridge Union Society regularly invite highly controversial speakers with whom there will be substantial disagreement among the student body, but the whole point is to hear views and debate them. That is how these things ought to happen.