Higher Education (Freedom of Speech) Bill

Lord Triesman Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I shall speak to Amendment 2, which is in my name and that of the noble Lord, Lord Triesman. The amendment seeks to do two things. First, it seeks to explore what the Government mean when they refer to

“freedom of speech within the law”

in new Section A1(2). Secondly, it seeks to avoid a possible inconsistency between the freedom of speech that the Bill seeks to protect and promote and the right to free expression that is protected by Article 10 of the European Convention on Human Rights.

There is a bit of history behind this amendment. I drafted it just after the Bill received its Second Reading in the summer. At that time, the Prime Minister was Boris Johnson, the Secretary of State for Justice was Dominic Raab and the Bill of Rights had just been introduced, which I think it is right to say he particularly favoured. The point that concerned me at that time was two Bills dealing with freedom of expression or the right to freedom of speech proceeding together without any connection between the two. What happened, as we all know, is that there was a change of Prime Minister. When Liz Truss became Prime Minister, Dominic Raab was no longer the Secretary of State for Justice and it was made known that the Bill of Rights was no longer to be proceeded with. However, there has been another change: we have a new Prime Minister, Dominic Raab has come back in again as Secretary of State for Justice and it is possible that the Bill of Rights may be resurrected and create the problem that I was anticipating in the summer. I stress that one of my motivations behind this amendment was to be sure that both bits of legislation, if they are to proceed, are in communication with each other and that, when we use the expressions “freedom of expression” or “freedom of speech”, we are talking about the same thing.

I come back to the point that I mentioned at the beginning: the phrase “within the law” needs some explanation. It seems to assume that the law already tells us what the freedom amounts to. I think that most people—certainly most lawyers—would tend to look to Article 10 of the European Convention on Human Rights as telling us what the freedom amounts to, because it spells it all out and it is suitably qualified for various reasons when you read the second part of Article 10. I should have thought that to build it into this Bill makes good sense. The amendment seeks to explain and give body to the expression “within the law”.

Those are the two reasons: first, to give greater body to the phrase “within the law”, so that everybody understands what it means and to preserve consistency with Article 10, which is part of our law; but also to avoid a possible inconsistency with the Bill of Rights, should it be reintroduced, because it would be unfortunate if that Bill, when it talks about freedom of speech, as it does, should be using a different basis for legislation. I should explain, and I am quoting now, that Clause 4 of the Bill of Rights says:

“When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right.”


It goes on to say:

“In this section ‘the right to freedom of speech’ means the Convention right”.


It then sets that out in full in the way that my amendment does.

My amendment is based on the wording that can be found in Clause 4(2) of the Bill of Rights as it was, and it is the best I can do to bring the two Bills into line. With great respect, I do not think that this amendment does anything to harm this Bill or in any way interfere with the basic principles which the Government are seeking to achieve by promoting this legislation. All I am trying to do is avoid misunderstandings and inconsistencies. With that background, I commend the amendment to the Committee.

[Lord Triesman (Lab)]

My Lords, I start with my declaration of interests: I still hold academic posts at Cambridge, and I was the general secretary of what was the Association of University Teachers, now UCU—it is a rather different beast these days, but none the less, it was part of my history. It is a privilege to follow the noble and learned Lord, Lord Hope of Craighead. I think the distinction he makes, and the way we could embody consistency between potential pieces of legislation, is very important.

Although Amendment 22 is in a different group, I will make a point now which might mean that it does not have to be repeated later. It is very important to the academic world to know exactly what we as legislators mean by the different terms used. These terms are used very widely in academic life; they always have been and so they should. They were widely defended in academic life as being fundamental to its culture. I would like to believe that they are fundamental to the culture of many other parts of life as well, but they were fundamental to that culture. One of the reasons it is so important to express these concepts in this Bill, and one of the reasons I can understand why the Government have produced it now, is that, sadly, the challenges to freedom of speech and academic freedom have become much more acute and have not been dealt with particularly effectively.

I hark back to the earlier period precisely because the sector itself would have then dealt with these things very firmly and effectively. It was the DNA of the sector. Nobody would have questioned the right of people within the law to espouse views that were unpopular, take sometimes dogmatic positions and engage in every kind of argument under the sun, and, if others wished to try to rebut those arguments, to hear those other arguments in the same spirit. That was—I hope the Committee will forgive me for repeating the point, but it seems so fundamental—the DNA of this sector. I would like to feel that, when the final draft of this Bill appears, it will contain expressions about that which will be instantly recognisable to the people who used to celebrate those values. They will then see this as theirs, not just ours—not just what legislators think is right but what the sector was committed to and always believed was right. The noble and learned Lord, Lord Hope, has done us a great favour in saying that.

I also support wholeheartedly my noble friend Lord Collins’s amendments. I want to make one brief point about the concept of “within the law”. Generally speaking, I would hope that I understand what those words mean, but there are some areas where freedom of expression arises where I am not entirely sure that I do. I want to mention those here, not because I want to restrict people’s freedom of expression but because I do not want us to do undue harm to anybody. I am thinking here of the kind of coverage given in public by some people to the murder of the children at Sandy Hook and the case, which I believe will be reported on “Panorama” this evening—goodness knows how I know, but I have heard this—to do with people making gross allegations about what happened at the Manchester Arena bombing.

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Please can we have some definitions of “member”? I beg to move.

[Lord Triesman (Lab)]

My Lords, I will speak to my Amendment 22. One of the things that I have inevitably observed over a long period is that the proportion of the academic and academic-related staff who are on full-time contracts of the kind that we used to describe as tenured contracts has declined significantly. In some institutions it has declined almost to the point where they are a small minority. I do not agree with why that has happened, but I understand why it has. Generally speaking, it is quite difficult to get rid of people who are tenured, and if you are in economically straitened circumstances, you are probably looking for the least protection possible for some grades of staff.

But it is also true that the number and proportion of staff, and I make the point about both, who are no longer tenured but are absolutely vital parts of the academic community and are now on part-time, hourly and short-term contracts—a whole variety of contracts that do not conform to what we would have thought of as tenured staff—are increasingly women and members of ethnic minorities. There are all sorts of reasons why that is the case. For women, it is often said that, because their careers get interrupted for various reasons, it is easier to deal with them if they are not in a tenured position. For example, you do not have to replace them for maternity leave purposes. This has had a detrimental effect on the security of employment that is also discriminatory.

I will make two points that I hope the Grand Committee will feel are not in any sense unhelpful. First, if we want to ensure that the whole of the academic community buys in effectively to these concepts and the Bill’s key propositions—I share with my noble friend Lord Hunt and many others who have spoken the belief that this is probably not the right way of going about it, but none the less we are going about it so I am going to do my best with what we have—then we need to make sure that universities understand that it means the whole of the community. I regret to say that many universities tend to think of the academic community as being the tenured staff; I fear that that is probably also true of some Cambridge and Oxford colleges, having known those colleges myself over the years. They have much less regard for whether other aspects of academic life apply to all the other academics. I am not even being particularly critical of that; I am just saying that it is one of the ways that the sector has evolved.

Secondly, as I have said, this has had a discriminatory effect. When we talk about the academic community, it would be very easy to say that we do not have exceptions in mind. As the noble Baroness, Lady Smith, said just a few moments ago, we mean the whole thing, because we intend that the Bill’s impact should be on the whole of that community who are employed as academics, irrespective of the character of the contract they hold. I do not even believe that it would have any difficulty embodied in it for contractual or other purposes; it would simply be everybody who is employed to teach or research. I include in that “academic-related”, because, rather like the librarians in your Lordships’ House, there are a number of people who do background research that is fundamental to the academic conduct of an institution.

I commend this amendment without embarrassment, because either the Bill means what it says or it means it for only some people.

[Lord Sandhurst (Con)]

My Lords, I will address Amendment 26 and the consequential Amendment 71, which we need not look at. Amendment 26 effectively aims at much the same target as the noble Lord, Lord Triesman. It may be that the definition is different and it may be that we can discuss this, but the point is exactly the same: it is to include the whole of the academic community in the university. We must get these words right. If there is a practical difficulty with the use of “emeritus”, for example, we can look at it.

What is really necessary is that “academic staff” is made clear in the Bill and that it covers the range of people who are most vulnerable. The most vulnerable are not those on full-time contracts; they are the doctoral students, other teaching staff and researchers, and those on part-time or less secure contracts. It is vital that, if they are pushing forward ideas that happen to be unpopular in their particular community, but are legitimately doing their job well, they are not dismissed or otherwise penalised for holding those views and expressing them.

Amendment 26 was tabled at Report in the Commons, and on 13 June, the Universities Minister offered the following clarification:

“To clarify, the Bill uses the term “staff” to broaden the existing reference to employees, as not all those who work for a higher education provider have an employment contract or employee status. I can confirm that it will include those on short-term, casual contracts and PhD students undertaking teaching.”—[Official Report, Commons, 13/6/22; col. 72.]


I suggest that my amendment would go a little further and make it absolutely clear that it encompasses all those who will need protection.

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[Earl Howe (Con)]

I would be happy to take this away and investigate. Once I have done so, I would be happy to write to the noble Baroness and the noble Lord, Lord Wallace.

[Lord Triesman (Lab)]

I would be grateful for that letter as well. I suggest to the noble Earl that one of my experiences of these colleges is that they do not go back and read anything much later than 1650—I do not mean pm—and they probably do not care. If it is has to be clarified, it is much better that it is clarified.

[Earl Howe (Con)]

I am grateful to the noble Lord. I wanted just to cover another question that the noble Baroness put to me about retired professors. If a retired professor is an emeritus professor, they are protected by the Bill as a member. This is important if they still have a role in the university. If they have no such role, then in practice the provider will not have to take steps to secure their freedom of speech since they will not be speaking on campus or taking part in university life.

I turn to Amendments 22, 26 and 71, which seek to define academic staff for the purpose of the Bill. We have used the term “staff” to broaden the existing reference to “employees” in the Education (No. 2) Act 1986, as not all those who work at a provider have an employment contract or employee status. This term is already used in the current definition of academic freedom in the Higher Education and Research Act 2017 so is an understood term in this context.

“Staff” includes academics who hold honorary appointments for which they are not paid, for example honorary fellows. PhD students will be considered to be academic staff, for example, in so far as they teach undergraduate students. It will be a question of fact in each case whether they are covered as staff or students. The term covers staff at all levels, whether or not they are full time or part time, permanent or temporary. Visiting staff who are perhaps working at the university for a year are also covered. They must be distinguished from visiting speakers who are academics working at another institution, who are covered by the Bill as visiting speakers, rather than as staff of the provider.

I listened with care to the noble Lord, Lord Stevens of Birmingham, and his question about the way in which academic freedom interacts with academic standards. I said earlier that there is nothing in the Bill to encourage baseless or harmful claims or bad science on campus, but it is important to recognise that a provider in this context is an employer, and that its staff will have signed an employment contract and be subject to its employment policies.

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[Earl Howe (Con)]

My Lords, the group of amendments to Clauses 1 and 3 tabled in the name of my noble friend Lord Willetts and spoken to by the noble Lord, Lord Stevens, seek to give higher education providers and student unions the flexibility to move events to alternative premises but not cancel them. The noble Lord, Lord Mann, has also tabled Amendment 6 to the provisions concerning premises.

Under the Bill as drafted, providers, colleges and student unions will already be free to move events to alternative rooms, should that be appropriate. The main duty of taking reasonably practicable steps to secure freedom of speech is linked to the provisions that are the subject of these amendments—those in proposed new Section A1(3). This means that the duty is to take reasonably practicable steps to secure that the use of premises, and the terms on which such use is offered, are not based on the ideas, beliefs or views of individuals or groups. The duty to take reasonably practicable steps therefore means that there is already flexibility.

In any event, a provider, college or students’ union is not required under the Bill to allow the use of their premises at all times and in an unlimited way. It is open to them to offer particular rooms for use by event organisers at specified times. As regards Amendment 6, Section A1(3)(a) refers to “any premises” but could refer to “premises” without changing the effect. It should also be noted that the relevant body can place conditions on the use of rooms.

In this context, it might be helpful to touch specifically on the point raised at Second Reading by the right reverend Prelate the Bishop of Coventry regarding concerns about the use of faith spaces. I was very happy to meet him some days ago to discuss this. The example given by the noble Lord, Lord Mann, of having an anti-Israel talk right next to Jewish premises, touches on a similar point. Sections A1(3) and (4) on the use of premises essentially replicate the wording of the Education (No. 2) Act 1986, referring to beliefs among other things in that context. As I said earlier, the provisions link back to the main reasonably practicable duty in subsection (1), so it is not an absolute requirement. I think that was an initial cause for concern on this point, so I am happy to clarify that. In fact, the “reasonably practicable” steps wording enables providers to continue to designate spaces for use by faith groups without any obligation for the provider to open those spaces up to other groups, whether or not they have conflicting ideologies.

Under the reasonably practicable steps duty, it would be legitimate for a provider not to offer a particular faith space to any group that wants to hold an event, but to offer another suitable space, thereby upholding the freedom of speech duties and preserving the integrity of the space set aside for the faith group. The legislation enables providers to respect the religious views of those with designated rooms, taking into account the duties under the Equality Act, while still complying with the freedom of speech duties. To pick up a point made by the noble Lord, Lord Grabiner, we anticipate that the Office for Students will publish guidance for providers on how to comply with the duties. We can certainly discuss this with the Office for Students to ensure that it covers this issue, which I hope will provide noble Lords with further reassurance.

I just say to the noble Lord, Lord Collins, that providers are already required under the Education (No. 2) Act 1986 to have a code of practice regarding freedom of speech. The Bill strengthens that requirement. Providers will now need to include a statement of values in their codes of practice that clearly sets out the importance of freedom of speech. Providers should be setting the tone and expectations campus-wide so that everyone is confident to express their lawful views and challenge received wisdom, even if their views are unpopular. Codes of practice will also need to set out the criteria that providers will use to make decisions about the use of their premises for events involving potentially controversial views, as well add the criteria for when exceptional circumstances may apply regarding the payment of security costs. The Bill strengthens the duty on providers already set out in the Education Act 1994 so that all students, not just those who are members of student unions, are made aware of the duties and the code. Once again, the Office for Students will give guidance on this.

[Lord Triesman (Lab)]

I want to go back to the noble Earl’s point on security costs. I would like to understand a little more what that might involve. My own experience, probably not wholly appropriate, comes from football. Inside many football stadia, including quite small ones, the clubs provide stewards. Sometimes, certainly outside, the police provide security, and sometimes, if it is called for, they also provide it inside. There is a huge argument about who should bear the cost of the police providing security, since it has an often quite considerable impact. In the event that internally provided security, whoever pays for it, is not adequate to the circumstances and the police are called in, who becomes responsible for the costs?

[Earl Howe (Con)]

Amendments 24 and 43, spoken to by the noble Baroness, Lady Smith, exactly address that set of issues, and I was about to comment on them. They concern the duty to generally bear the security costs for events. Understandably, the amendments probe how the costs of the provision of security for controversial meetings should be distributed among appropriate bodies. The duty on higher education providers, colleges and student unions is that they must not pass on some or all of the security costs to event organisers unless there are exceptional circumstances. The criteria for what are exceptional circumstances will depend on the nature of the particular body, and therefore must be set out in its code of practice, for the sake of transparency.

This element of the Bill is exceptionally important. We know that certain minority groups face serious security concerns when speaking on university campuses, as the noble Baroness, Lady Bennett, pointed out. My right honourable friend the Minister spoke in the other place about the University of Bristol students’ union imposing a £500 security bill on a student society in order to allow the Israeli ambassador to give a talk. This is simply not right. The cost of securing events should not stand in the way of people having a voice. The Bill as currently drafted protects these groups while also giving autonomy to providers, colleges and student unions to make their own decisions about what constitute exceptional circumstances. This drafting reflects that their resources are not finite and that there may be other relevant factors specific to that institution that will need to be taken into account.

The noble Baroness, Lady Smith, asked about exceptional circumstances and when costs can be passed on. We believe it is important that providers, colleges and student unions have the right to determine what constitutes an exceptional circumstance when considering who should pay for security costs of an event, taking into account, in particular, what is reasonable given their resources and other relevant factors. It is also important that the criteria they use are transparent, so that student societies are aware of them when they are planning an event. If costs are passed on to a student society and it considers that the criteria have been wrongly applied, it will be able to complain to the OfS under the new complaints scheme. Once again, we anticipate that the OfS will publish guidance on the content of codes of practice, including on security costs.

[Lord Triesman (Lab)]

When the police decide to intervene, it is often not because a host organisation decides that they should or invites them to. They make a judgment, as constables, as to what would constitute a way of securing a peaceful circumstance for the event or for the premises. Nobody knows that it is going to happen unless they decide to do it, and nobody decides who is going to pay for it in advance, but happen it does, and arguments about who should then pay for it occur. How would a code of practice deal with that?

[Earl Howe (Con)]

I am not sure I accept the noble Lord’s argument. If an event is properly planned—which it should be, particularly if it is sensitive or controversial—its security implications should surely be considered in advance. If it involves a police presence, that consideration should surely encompass the cost of that police presence. It would be a very remiss institution that did not look at the effects and requirements of the event in the round before it happened.

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[Lord Sandhurst (Con)]

What we are concerned with in particular is people losing their employment, but I am happy to go further.

[Lord Triesman (Lab)]

My Lords, I wish to introduce Amendment 14. It touches on the kinds of concerns that the noble Lord, Lord Sandhurst, has just raised and it is, in my estimation, a kind of partner clause that I want to explore with your Lordships to the one introduced by the noble and learned Lord, Lord Hope of Craighead, at the very beginning.

One of the arguments I have tried to advocate to the Grand Committee is that, if this is to work at all, it must be felt to be under the ownership of the university and higher education world. For people to address a cultural problem, they need to get to grips with it. It is not about just processes and techniques—it is to do with very fundamental feelings. However many times references to academic freedom are made, if they are not made in a way which aligns with how the academic world and the academic community understand the meaning of those words, it is unlikely to take root and will not have that cultural impact.

That is why I have raised the question, which was also raised earlier by my noble friend Lord Collins, of the UNESCO normative instrument. This was a worldwide UNESCO conference, which adopted a worldwide definition of academic freedom which had been promoted by the academic world, the very people we are trying to address, as a definition to which they could all assent and which they would all defend. I make that point because, if we are to achieve success in this, we certainly want them to adhere to it and defend it.

The work was invited by UNESCO of a body that at that time I had the great honour to chair, which was the Association of Commonwealth Universities, an association of universities literally throughout the Commonwealth. It was drafted—some bits have been cited by my noble friend Lord Collins already—in the United Kingdom and Canada, and went through a very long process to try to make sure that this was the definition of academic freedom which the world of academics would feel was theirs.

If we had gone to UNESCO slightly earlier, the noble Lord, Lord Boswell, would have been the Minister. If it had been slightly later, it would have been the noble Lord, Lord Henley. As it happens, it was just after the general election of 1997 and, as a consequence, it was a Labour Minister who spoke to it. I make that point because there was never a cigarette paper—I know nothing about cigarettes, but the Committee will bear with me—of ideological difference between us about this. There were some differences around the world about it, and one or two nations—only one or two—declined to sign it, much to the annoyance of the rest of us. Saudi Arabia declined on the grounds that it covered women academics as well, and it did not accept that anything should be a right or privilege for women academics—no rights to academic freedom whatever. If we had included a clause restricting it to male academics, Saudi Arabia would probably have signed it as well. I just make the point that this was as close to universal as you could get in academic life where, believe me, getting universal agreement is very close to impossible.

The merit of that is that it provides us with a definition of academic freedom. It may be said that there are other definitions, but this provides us with one that the academic world itself formulated, adopted, approved and, with the exception of people who did not want women to be covered by it, was accepted by everybody. I should probably add that Qatar did not like it either for the same reason, but none the less, all the rest of us did. I commend it to the Government because, if the Bill is to become law—we have expressed our anxieties about whether it is the best way forward, but it may very well do; it is government-backed legislation, after all—I appeal to them to try to ensure it brings along everyone, because short of that, its prospects in practice are very poor.

That is why I provided a small history. As it turns out, it was engendered in the Commonwealth, in institutions with which we are probably all very familiar, against the background of a set of values with which we are all familiar and opposed only by people who, if I may say so without being unnecessarily unkind, do not share some of those values at all. Aside from having the assent of the academic world and being still referred to and related to by it, it establishes in a way we would all want that if people want to get up within the law to make controversial, difficult, unpopular or any other kinds of propositions and speeches in the academic world, it is a global right to do so, signed off by the first signatory to it, the United Kingdom.

[Baroness Fox of Buckley (Non-Afl)]

I shall speak to Amendment 17 from the noble Lord, Lord Strathcarron, to which I have put my name. The amendment strenuously argues that the Bill needs to make it explicit that expressing opinions about any registered HE provider, including opinions on its “curriculum, governance, affiliations”, “teaching” and so on, will be protected by the Bill. Specifically, I want to look at a new challenge to academic freedom in relation to institutional values.

I do not know whether noble Lords saw a remarkable interview over the weekend with a couple of women, Carole Sherwood and Amy Gallagher from the Tavistock clinic. For once, this is not in relation to the gender issue and the Tavistock. One of the women had refused to accept as fact a critical race theory definition of racism as white privilege. Remarkably, the people who were teaching her in front of classes said that she would be denied her psychotherapy qualification because her views were not in line with the Tavistock’s values.

This is becoming a clearer problem that we face, because universities, or their HR and management, are signing up to third-party bodies, which then sign the universities up to values and priorities that might well be at odds with the views of academic staff. Obviously, the infamous example is Stonewall’s diversity champions scheme, but more recently it has come to light that Advance HE’s race equality charter is having the same impact. That charges universities a fee to provide advice and training to audit the university’s anti-racism strategies, themselves formulated around Advance HE’s guidance—you can get bronze and silver certificates and so on along the way. Advance HE encourages universities to highlight their race equality scores in their marketing. Arif Ahmed, lecturer at Cambridge, who has been quoted a lot today, thinks that the charter encourages what he says is virtue signalling competition between universities. I give credit to Dr Jim Butcher from Canterbury Christ Church University in Kent and the campaign group Don’t Divide Us for bringing this to light.

Obviously, we can assume that 99.9% of students and lecturers consider themselves to be anti-racist. The problem is that regardless, this is a very particular version of what constitutes anti-racism. Advance HE’s training argues that the curriculum has been corrupted by western ways of knowing; that our attitudes are shaped by whiteness. It is a version of critical race theory that says that inequality persists even in the context of formal equal rights. That is fair enough, but when it asks that question it gives some at least contentious answers, such as that unequal treatment is a product of white supremacy.

Of course academics and students should be free to hold any of those views—I am not one of those who think that critical race theory should be banned from the university, especially in the context of being a champion of academic freedom—but the problem is that when universities give CRT explicit institutional backing, that means that any academic who doubts the salience of white privilege theories or disagrees with the demand, for example, to decolonise the curriculum not only is arguing against a body of thought but ends up arguing against their employer, which puts them in a very difficult position. We have to be very clear that one should be able to argue against one’s employer or these theories, and we should not be in a situation where somebody is denied a qualification on the basis of the values of the university, which is imposed from the top down and which one is not allowed to query.

I also want to mention some qualms I have about Amendments 15 and 16, which have not been argued for. They attempt to hem in a definition of academic freedom into areas of expertise and professional responsibilities. In particular, Amendment 16 wants to remove

“and controversial or unpopular opinions”

because, as it says in the notes, they have no roots “based on evidence”. I query that, because it is very important that we have a sense of academic freedom here that is much broader than the narrow confines of one’s academic expertise. Actually, the Government did listen on this: I think they had “professional expertise” in and they have taken it out. I do not want to see it being brought back in.