Higher Education (Freedom of Speech) Bill

Lord Stevens of Birmingham Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Lord Stevens of Birmingham (CB)]

My Lords, I declare my interest as an honorary fellow of Balliol, my former interest as head of the largest employer of graduates in this country, and perhaps even my future interest as the parent of an 18 year-old, hopefully heading off to university next year.

Parliament is right to want to protect academic freedom and free speech on campus. We have heard specific cases of concern today, and there is a problem that needs to be nipped in the bud. But we do not need battle slogans from the culture wars. Any legislative proposals need to be carefully calibrated because there are complex and competing considerations.

We have heard today that conflicts over academic freedoms stretch back through history. The noble Lord, Lord Wallace, started the clock at 1968, the noble Lord, Lord Moylan, mentioned the Reformation, and the right reverend Prelate the Bishop of Coventry mentioned St Augustine. I am reminded that our oldest university, Oxford, predates Parliament itself and Magna Carta. In 1377, John Wycliffe, translator of the Bible, found himself no-platformed by Pope Gregory and dismissed from the university. As a student, I remember looking out at the Martyrs’ Memorial, where Cranmer, Latimer and Ridley were “cancelled” by Mary Tudor as they were burned at the stake. In 1683, the books of John Milton, our greatest advocate for freedom of speech, were not subject to a trigger warning but burned in the Bodleian. So history tells us that these debates go back a long way.

History also teaches us that the greatest threats to academic freedom have generally come not from within universities but from overbearing theocracy and an overreaching state. This remains true around the world today, and it is not a left-versus-right issue. The Republican Governor of Florida is currently trying to rig academic appointments and gag professors. Authoritarian regimes of all ideological hues cannot stand independent universities, which is why China, Hungary and Iran all score badly on the global Academic Freedom Index. Subject to the important points made by the noble Lord, Lord Johnson of Marylebone, and the noble Baroness, Lady Shafik, this is why Clause 9 is, in my view, right in principle to require transparency about our universities’ international funding from countries that do not respect academic freedom.

However, that concern about government intrusion is also why we should be judicious, nuanced and restrained before we impose more state regulation and political control on our universities. As was pointed out, in your Lordships’ recent debate on the Schools Bill, a number of former Conservative Education Ministers objected to a centralising power grab by the Department for Education. This Bill suggests that that was not a one-off aberration.

Since this is Second Reading, it is worth considering the underlying principles at stake. First, we need to consider whether the Bill yet satisfactorily combines free speech protections on the one hand with safeguards for academic rigour on the other. Universities promote academic free inquiry because it contributes to their distinctive mission, which is to advance knowledge and education through structured debate, based on reason and evidence. Unlike Speakers’ Corner in Hyde Park, Twitter or the op-ed pages of a newspaper, universities have a distinctive responsibility to instil respect for established facts and evidence-based knowledge. It is a fundamental epistemological misconception to argue that the mission of universities places them under some sort of obligation to give airtime or credence to those who argue, for example, that there were no gulags in the Soviet Union, that vaccines cause autism, that the Protocols of the Elders of Zion are genuine or that intelligent design explains the origin of the universe. I say to the noble Baroness, Lady Fox: that is not viewpoint diversity, that is crank conspiracy and licensed idiocy. The Minister for Higher Education asserted in the Commons that this is not what this Bill will produce. Here, in your Lordships’ House, we should consider perhaps clarifying amendments to ensure that it does not.

The second question is the one my noble friend Lord Macdonald raised a moment ago: are universities striking the right balance between challenging discussion and inclusive participation? If not, will the Bill help or hinder? Universities have to weigh conflicting goals and legal obligations. Universities are right to try to ensure equal participation for all their students, because in an academic setting, it is the quality of reasoning and evidence that counts, not whether you are Jewish, black, female or gay. White supremacists and religious fundamentalists who regard some students as inherently inferior are, therefore, themselves intrinsically incompatible with the proper functioning of a university.

On the other hand, many academics worry that claims for identity-based protection are increasingly being weaponised, with the risk that universities become so-called sanctuaries for comfort. This afternoon, we have heard statistics from the Higher Education Policy Institute survey quoted extensively. I will repeat a particularly salient data point raised by my noble friend Lord Macdonald: 36% of students believe academics should be fired if they teach material that heavily offends some students—a proportion which has doubled in the past six years. There is also accumulating scientific evidence, including from randomised controlled trials, that trigger warnings and the like may actually harm, rather than protect, survivors of past trauma. So we need a course correction if we are to avoid spiralling towards the poisonous antagonisms now paralysing so many US college campuses. In doing so, however, we need to tread with care. As the Bill stands, a new politically appointed commissar in the OfS would be handed sweeping powers to oversee free speech and academic freedom in this country. The Bill has completely inadequate safeguards on how that post is appointed and how the new role will operate.

Furthermore, as the noble Lord, Lord Willetts, rightly argued, if the OfS is to have new regulatory oversight powers, there is no need to create competing, costly and complex alternative mechanisms via the courts. The Department for Education’s revised impact assessment, at page 24, laughably and ludicrously pretends that creating a new statutory tort will cost nobody anything ever. In the real world, Clause 4, as currently drafted, will ensnare our universities in vexatious, partisan and pointless litigation for years to come. At a time when universities’ real-terms tuition funding is being so heavily squeezed, every extra pound they have to spend on lawyers is a pound less for students. As we heard earlier, at a time when the courts in this country are already overwhelmed—with thousands of rape cases, violent crimes and civil claims waiting years to be heard—it makes no sense to divert scarce judicial resources to second-guessing both the Office for Students and universities themselves.

In summary, my view is that the Bill is going to need thoughtful and sensitive amendment to avoid doing more harm than good.