Higher Education (Freedom of Speech) Bill

Lord Wallace of Saltaire Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, this Bill is unnecessary and un-Conservative. It addresses a problem that is far less severe than right-wing think tanks have claimed, and for which the Government’s White Paper admitted that there is very little supporting evidence. Ministers who preach deregulation and shrinking of the role of government are introducing a Bill to impose burdensome and costly new regulations on British universities—the sort of thing that authoritarian Governments in Hungary and Russia impose to limit critical debate and cripple civil society. This is not what a Government who claim to be leading the democratic world against authoritarian regimes should be doing.

It is also an orphan Bill. Those who pushed for it in government—Munira Mirza, the champion of culture wars in No. 10, and Gavin Williamson and his special advisers in the DfE—have now left. Perhaps for that reason, the Bill loitered in the Commons through the last Session, giving hope to some of us that reasonable voices in government had thought it wise to let it die. But here it is, staggering on because wiser counsels within the Conservative Party have not prevailed, pushed onwards by the American and Australian-trained campaigners in No. 10 who think that fighting culture wars appeals to the Conservative base.

Our Prime Minister has been fond of the boast that the UK is “a soft power superpower”. The Minister will recall that the integrated review of foreign and security policy devoted an entire chapter to the importance of soft power. It listed as its most valued institutional components the BBC, the British Council, the quality and financial scale of our overseas development programme, the reputation of our universities, and the strength of our cultural sector. Since then, the Government have cut the aid budget, sidelined the British Council and repeatedly attacked and financially weakened the BBC. Now this Bill threatens to weaken the global standing and reputation of our universities by extending government oversight of academic debate, appointments and promotions.

There is a problem of toleration of dissent by the current student generation in our universities. The Higher Education Policy Institute has just published a survey which indicates that students have become more protective of what they see as vulnerable minorities, less willing to accept that freedom of speech necessarily includes the right to offend and less willing to tolerate university teachers whose views clash sharply with their own. We have seen a small but painful number of instances in which universities have failed to defend their staff in such circumstances, most sharply the University of Sussex in the case of Professor Stock.

University leadership needs to underline the importance of tolerance of different views among staff and students, but in a free society that role should be played by university leaders and not be imposed by government. In any case, how severe and widespread a problem is this for the over 100 universities? Is the challenge we face worse than in in previous cycles of student activism, which universities have come through without requiring heavy-handed government intervention?

Gavin Williamson in his preface to last year’s White Paper specifically deplored attempts to block Ministers from speaking at and ambassadors from visiting universities. The very first lecture I gave as a newly appointed lecturer at Manchester University in January 1968 was disrupted by a protest at the suspension of a student for assaulting an Education Minister the night before. I went to a ceremony at King’s College London some weeks ago to unveil a portrait of one of the students who had disrupted my lecture, who has since become an adviser to Governments and a globally recognised academic.

Some noble Lords may be old enough to remember the Stop the Seventy Tour and the wider student campaign against apartheid South Africa. My wife can still remember the song she and others sang as they blocked the South African ambassador from speaking at Oxford University. I have just read a memoir of the Stop the Seventy Tour which confirms that at least two of its most activist members have since become Members of this House.

Last year, I spoke to a number of vice-chancellors about this Bill and the issues it raises. One retired VC reminded me that he had struggled to maintain order on his campus in the face of deliberately provocative speakers invited by the then chairman of his student Conservative Association, one John Bercow. A current vice-chancellor told me that the biggest problem of this sort he faces is keeping the peace between his Chinese and Hong Kong students.

There is nothing new about student protest or arguments about the limits of freedom of speech in universities—and I have been an academic for 40 or more years. The question is whether the imposition of a heavy external burden of intrusive regulation, with the introduction of a new tort that will transfer large sums of money from university funds to lawyers through litigation, is a proportionate response to the limited number of unacceptable instances we have seen, above all related to trans rights. I suggest that the proposals are disproportionate. This extension of state interference over autonomous institutions is authoritarian and not Conservative.

The Bill covers not only students and student unions but also staff, visiting speakers and the loosely defined “members” of higher education providers. I understand that, as a retired professor, I may count as a “member” of the LSE, with standing to sue or be sued under the Bill—I shall have to check with the director. The provision that permits discontented staff to sue if they consider

“the likelihood of their securing promotion or different jobs at the provider being reduced”

opens a huge can of worms. I declare an interest: I was once passed over for promotion at the department of government at Manchester on the grounds that I was “too interested in politics”.

The anti-intellectual right in the United States, with its claims that universities are hotbeds of liberalism actively discriminating against honest conservative thinkers, has close links with right-wing bodies in the UK. Policy Exchange in London has claimed on its website to have provided the foundations for the Bill, with almost all of its recommendations in two reports being accepted. I regret that the noble Lord, Lord Godson, is not here today to take credit for that achievement. He might also wish to tell us how much of the significant American funding for Policy Exchange has come from those right-wing foundations that have fuelled Trumpian Republicanism. Think tanks, like universities, should be transparent about their foreign funding.

I was struck when I read the Policy Exchange papers that they had almost as many references to American examples as British, including some from hard-right foundations. They included the claim that the staff of British universities are overwhelmingly left-wing: 80% apparently failed to vote Conservative or UKIP in the last two general elections. Given that over 20% of staff in most universities are not British citizens, and that a large proportion of that staff are scientists and medics and not particularly interested in politics, I find this statistic completely unbelievable.

I am concerned, however, about the undertow of anti-intellectual, anti-rational argument from right-wing critics about Britain’s alleged liberal elite and its allegedly malign hold on our cultural and educational institutions. The Times gave Douglas Murray two pages last Saturday to develop this theme, in which he stated that it’s now virtually impossible for a climate change sceptic to gain appointment as a university chancellor or museum director. If challenging the allegedly oppressive liberal cultural elite means insisting on climate change sceptics being appointed to senior academic positions regardless of their attitudes to evidence and reasoned debate, then our universities and their reputation are, indeed, at risk.

The shadow of Brexit hangs over this, of course, as over so many other aspects of British politics and public debate. The claims that appointments and promotions are biased against conservatives comes from leading members of Historians for Britain and a handful of political scientists. There is no evidence that I am aware of of structural bias against conservative academics; indeed, the founder of UKIP was a friend of mine and a colleague at the LSE. Opening appointment and promotion procedures to challenges over alleged political bias would be a serious incursion into the autonomy of our universities and a feast for lawyers in civil cases.

This is not the first time that structural bias in universities has been alleged. When Margaret Thatcher became Prime Minister, she was determined to abolish the Social Science Research Council. She believed, as a hard scientist, that there was no such thing as social science; that what was taught in universities was intrinsically socialist. She asked Lord Rothschild to report. He, thankfully, responded that careful social and economic research was essential to good government, and that public money should continue to underwrite it. She nevertheless insisted on removing the word “science” from what has since then been labelled the Economic and Social Research Council.

Allegations about left-wing bias in universities focus on social science and humanities, and above all on historians, but history faculties have always argued among themselves, often bitterly. The political balance among academic historians in Britain has been adversely affected by the choice too many of our self-declared patriotic historians have taken to emigrate and take better-paid posts in the United States. Different disciplines have different tendencies. One vice-chancellor told me that his university has a structurally left-wing sociology department and a structurally right-wing economics department: it goes, he said, with the disciplines. Those who want to use this Bill as a lever to promote more solidly conservative views in our higher education institutions should reflect that Britain’s most clearly conservative institution, after the University of Buckingham, is Christ Church College, Oxford: not the greatest example of toleration of dissent and diversity.

Others will touch on the tangle of vexatious lawsuits that this Bill will impose on universities. I briefly mention the comment of another vice-chancellor that it will be completely impossible, in the current heated political atmosphere, to find a candidate for the post of free speech champion who will be acceptable to all sides. Nor can we have confidence in Ofcom assuming this role, when the noble Lord, Lord Wharton, as chair, associated himself with Viktor Orbán and the authoritarian right at a recent Budapest conference. I speak with particular feeling on this as a former visiting professor at the Central European University and a member of its senate in Budapest in its early years, when Viktor Orbán still called himself a liberal.

At a time when trust in this Government is at an all-time low, when suspicion of No.10’s political appointments is high, when the contamination of the Conservative Party by American Republicanism should concern all decent Conservatives, we will have to do our best, as the revising Chamber, to mitigate the damage this Bill could do to the global reputation and standing of our universities.

Higher Education (Freedom of Speech) Bill

Lord Wallace of Saltaire Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, the purpose of Amendment 4 in my name is that the law should recognise that one of the key chilling aspects of exercising academic freedom in contemporary times is when higher education institutions—via their HR departments, senior management or brand enhancement initiatives, or when they are advised by PR consultants—sign up to third-party organisations that set targets, codes and charters which, in effect, impose demands, often on the curriculum, research priorities and academic content of academic life, that are determined not by the demands of the discipline or scholarship but by fashionable external ideological diktat. In these instances, academics need to know that the law protects them if they challenge and/or defy such demands. This therefore requires us to recognise that academics can criticise their own institutions. This is about encouraging not gratuitous criticism but a defence of the autonomy of scholarship to define what is taught.

Since we have started deliberating the Bill, many have expressed reservations about this legislation as a threat to institutional autonomy by government interference. However, universities cannot be effective self-governing communities if they use institutional management power to silence internal criticism of their governance. Universities putting their own house in order is one thing, but, if they start adhering to external bodies and signing up to bureaucratic, top-down edicts, the academy as a self-governing community of scholars is threatened, as is scholarship itself.

What happens when highly contentious ideology begins to influence teaching and research and when the pressure of consensus and being on the right side makes dissent more difficult than usual? Academics dissenting from some of these ideological interventions, with legitimate concerns about their discipline being interfered in and even about the concept of what a university is for, should know that the law will protect them if they speak up and contribute to the debate.

When I was considering this issue, I recognised from my time in this place that noble Lords like nothing better than an international legal example to bolster their concerns. I have not usually relied on this, but I thought I would provide some international legal precedent. The Strasbourg court has consistently affirmed academic free expression as a fundamental right, and, in around eight Strasbourg cases concerning academic free expression, one principle has been particularly consistent: academics must be free to voice their opinion about their university. The 2016 Kharlamov v Russia case concerned a Russian physics professor who was sued for defamation by his university after criticising its leadership at an all-staff meeting to elect a new academic senate. The Strasbourg court found in his favour, saying:

“The principle of open discussion of issues of professional interest must … be construed as an element of a broader concept of academic autonomy which encompasses the academics’ freedom to express their opinion about the institution or system in which they work.”


All the cases brought to Strasbourg implement the influential 1997 UNESCO Recommendation Concerning the Status of Higher-Education Teaching Personnel, which was the subject of an amendment by the noble Lord, Lord Triesman, in Committee. The recommendation states:

“Higher-education teaching personnel are entitled to … freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies.”


It goes on to make the key point:

“Higher-education teaching personnel should not be forced to instruct against their own best knowledge and conscience”.


I will use a couple of examples to illustrate why I think this is an issue now, rather than just an abstract principle. The examples I will give relate to the popularity of critical race theory on university campuses. I do not want us to focus on what we think about CRT in particular, and I stress that the vast majority of lecturers have no truck with racism, even if they are critical of a particular brand of anti-racism, such as CRT. When higher education institutes sign up to organisations such as Advance HE’s race charter, one of the new issues they face is that they have to adopt a particular and contested view of race. Advance HE states that

“universities are institutionally racist spaces that have had a historic role in producing the knowledge that racism is based on”,

and, therefore, it demands that educational practice be “decolonised”.

In fact, we have seen this happening recently. A diversity drive by the Welsh Government is putting pressure on universities to decolonise courses. The devolved Government want HE providers to achieve a “race equality charter mark”, a score that grades organisations on their diversity and inclusion policies, as part of a plan for an anti-racist Wales. The Higher Education Funding Council for Wales has made £3 million of public money available to help universities pay companies and providers to score them on racial equality, as decided by Advanced HE, which urges a rethink on all subject matters and courses. I am worried that that puts pressure to review curriculums in line with Advanced HE’s decolonisation guidance.

Meanwhile, the Quality Assurance Agency for Higher Education, which advises universities and monitors the quality of courses, now uses CRT recommendations to say that we should decolonise 25 fields of study—noble Lords will have read about this in the newspapers. I was particularly interested in psychology. Apparently, psychology courses are

“historically based on research and theory from homogenous white, educated, industrialised, rich and democratic countries and do not represent diverse voices and contributions to the discipline.”

Some people I know who work in psychology and who argued against this were promptly recommended to go on an unconscious bias training scheme—so my concern is that there are consequences.

When the University of Oxford’s Faculty of Music decolonised its curriculum in response to student pressure, the university itself sought to forbid criticism of the new curriculum. With this law, we have to ensure that academics are free to speak up in this ideological hothouse atmosphere to say that they disagree according to their own expertise and conscience; for example, if they want to say that decolonisation is misguided and malicious.

I will give one more example, which is about the Architects Registration Board, a statutory body that is mandated by the Government to respond to legal and regulatory changes for architects to become architects. It is perfectly right that it wanted to change the curriculum to fit in with fire safety regulation and building regulation that has been passed here. However, the Architects Registration Board got rather carried away with itself and decided that it would use this opportunity to tell all architecture departments that any undergraduate or postgraduate degree or professional diploma must, for example, show:

“The importance of advocating for sustainable or regenerative design solutions … The relationship between social sustainability, social justice and environmental sustainability … How to design … to integrate and enhance natural habitats which encourage biodiversity”,


and so on. The point I am making is that you cannot become an architect now unless you sign up to that, so architects who are trying to assert their academic freedom come up against these third-party bodies which say that this is the only way that students will be allowed to graduate.

With Amendment 4, I simply want the Bill to recognise that there are new threats to academic freedom—quiet and silent threats, as it were—when it comes to academics being able to say that they disagree or agree with values that are imposed on them by institutions trying to make their name as doing the right thing. However well intentioned, I am afraid that it is a real threat to freedom. I therefore beg to move my amendment.

[Lord Wallace of Saltaire (LD)]

In speaking to my Amendment 5, I shall comment briefly on the previous speech. In all my experience of universities, the problem has usually been getting academics to stop disagreeing with each other, rather than their agreeing with each other and being scared to differ. I do not recognise the picture the noble Baroness has painted. In the universities I keep in touch with, and certainly in the case of the London School of Economics, it has been rare for any department—except the economics department—to have a clear consensus that we were not allowed to dissent from. In that case, the consensus was not a left-wing one, and I am afraid it probably still is not.

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[Baroness Altmann (Con)]

My Lords, I support many of the comments that have been made. As a non-lawyer, I think it is impressive that two senior lawyers have urged the House not to accept this remedy that would be ideal for helping lawyers. I will listen very carefully to my noble friend on the Front Bench because I think that, at the moment, we have to be very careful about unintended consequences. This is a well-intentioned, well-meaning and good Bill, and I share the determination to attempt to stop the stifling of free speech that has been going on. But the fear is that, even if a case were taken and won, it might not provide a meaningful remedy in financial terms—of course winning is fine, but if you do not get the right remedy, it has not taken you very far—for the person who is under threat, and the risk that poses to universities themselves to me suggests that there is perhaps an overreliance here on the idea, in theory, that having the ability to sue will make a huge difference. The result in practice of having that remedy could be that it has the reverse impact of what is intended.

[Lord Wallace of Saltaire (LD)]

My Lords, one of the Second Reading speeches that most impressed me was from the noble Viscount, Lord Eccles, whom I see in his place. He reminded us that Conservatives are in favour of limited government and limited intervention, and of autonomous institutions in civil society, and that universities are autonomous institutions and so the state needs to be very careful before it puts extra burdens on them.

At present, and in recent years, the state has added a number of extra burdens on universities, even while reducing its financial support. The National Security and Investment Act requires universities to report on a number of things. The National Security Bill, which had its Second Reading yesterday, has very substantial additional implications for universities, and we will discuss later this evening the overlap between its reporting requirements on overseas funding and the reporting requirements of this Bill on such funding.

As autonomous institutions, universities are led by responsible vice-chancellors and others, some of whom make mistakes. My first year as a university teacher was 1968. The vice-chancellor of my university, the University of Manchester, made some disastrous mistakes in dealing with the student revolts. The then director of the London School of Economics was just as bad. Most vice-chancellors learned from that.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I thank the noble Lord, Lord Sikka, for tabling this amendment. It is such an important issue and I am glad that he has brought it back.

We all want multiple funders for research—this is not an attempt to argue against the funding of research—but we need to be wary of a tendency towards advocacy research, from any direction. We sometimes assume that this concerns mainly big bad corporates; we need to look carefully at business interests, which have every interest in having their interests represented by the apparently impartial academic sector, but this can also be true of the big charities sector. It is often assumed that their backing of research will always be on the right side, but we should remember that they are also lobbying organisations.

That is why I am so glad that the noble Lord, Lord Sikka, mentions all sectors, including philanthropy. His main point is basing our decisions on transparency. As he rightly says, transparency should go way beyond just listing them, because in that instance you can end up with a situation where people think, “This big corporate has sponsored that, so therefore it must be corrupt research,” but also, “This big charity sponsored this, so it must be good research.” You want to know exactly what influence any funder has on the research. The amendment is particularly important since the phrase “the research shows” is often used as a precursor to “so we don’t need any debate”, because research is treated as a holy grail of truth. We need to make sure that research is reliable.

Finally, there is another threat to the impartiality of research: the ideological capture of research organisations, sometimes associated with the Government. I mentioned in Committee that UKRI, a non-political organisation to distribute government largesse which is the largest funder of research that we associate with the Government, boasts in its new equality, diversity and inclusion strategy that it has been inspired by political advocacy groups and grass-roots movements. It advocates that UKRI-supported research is “delivered in inclusive ways”, “uses levers” to make change, and so on. That calls into question impartiality in deciding the distribution of public research money.

Whatever the noble Lord, Lord Sikka, decides to do with this amendment, I hope that the Government and the Minister will take into account that this area cannot be neglected if the Bill is to be successful in protecting academic freedom.

[Lord Wallace of Saltaire (LD)]

My Lords, I cannot agree with the noble Baroness that ideological capture takes place in as quite as many places as she has suggested over the course of today’s debate. Of course, “ideological capture” is itself an ideological term. I think I know enough about UKRI to know that ideological disagreement and disagreement about evidence and priorities will continue to plague it, as all such organisations are likely to be plagued. I am sympathetic to this amendment, although I suspect that what it seeks to achieve is best provided by codes of practice and guidance.

I have had some experience in my career of having difficulty with getting research that I have done published. The first and hardest battle I had was with the Board of Trade, which had commissioned from Chatham House a study of the principles of trade policy. The economists who wrote it for us actually talked to a number of trade policy people and therefore produced something that was not entirely in line with the conventional wisdom of the economics profession. The economists at the Board of Trade therefore wanted to prevent us publishing it. We fought hard and they eventually gave in.

A more recent example was when I was asked by a think tank to contribute to a group of essays on the experience of outsourcing in the public services. I wrote something which was quite critical of outsourcing. I should have looked at its website, annual report and list of funders before I accepted the job. When I discovered that the largest outsourcing firms were among its largest funders, I realised why it had some hesitation about publishing what I had written. Again, after a small number of editorial changes, it finally accepted it.

I compliment that think tank for making as transparent as it did who its funders were. One of the briefing papers we have had for the Bill has pointed out the paradox that Policy Exchange, the fons et origo of much of the Bill, demands that student unions and others should be much more transparent about their funding but is itself entirely opaque about its funding. When I read the policy papers which led to the Bill, I was struck by the number of footnotes to American sources—much more than to any other international comparison. I wondered how much funding from various right-wing foundations in the United States had come into Policy Exchange. I do not know—perhaps there was none—but it should be a great deal more transparent about its funding. During the passage of the National Security Bill, I intend to push for more transparency from lobbying charities of that sort, to increase our sense of open debate.

I support the principles of this amendment, but I am not sure that we need to incorporate it in the Bill. I am sure that the Minister, in the spirit in which he has taken the whole Bill, will wish to make sure that the arguments are taken into account and that the principle of open research and publication is accepted and pursued, and not blocked by either civil servants and Ministers in government, or those outside government who commissioned the research.

[Baroness Royall of Blaisdon (Lab)]

My Lords, the Faculty of Music at Oxford University does excellent research. Earlier on, the noble Baroness, Lady Fox, said:

“When the University of Oxford’s Faculty of Music decolonised its curriculum in response to student pressure, the university itself sought to forbid criticism of the new curriculum.”


I have checked with the head of humanities at Oxford University, Professor Dan Grimley. There were indeed some articles in the Daily Telegraph and the Daily Mail suggesting that that might have been the case, but I have it from the professor—from the horse’s mouth, as it were—that the music curriculum at Oxford has not been decolonised and there has been absolutely no attempt to stifle debate.

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[Lord Patten of Barnes (Con)]

My Lords, I will speak in support of those observations. I speak at a university that is in receipt of an extraordinary stream of revenue from its academic press. I think it is true to say that it has the largest academic press in the world, which is hugely successful and is a very large international business. I am puzzled at the suggestion that the contracts it negotiates elsewhere are likely to have an effect on freedom of speech and the associated freedom of inquiry at the university itself.

One reason why the university press is covered is that it is part of the university—and it is part of the university precisely to stop that sort of thing happening. So I very much hope that we can have some clarity on this and get an assurance that there will not be any question of commercial fishing trips with university presses. It is incredibly important that they are allowed to go on firing on all cylinders and doing as well as they do at present. The Oxford University Press, for example, sells 2 million copies of the Oxford English/Chinese dictionary every year in China and has huge sales of academic books in Shanghai. Our China Centre has not been prevented from teaching people about what is happening in Xinjiang, Tibet or elsewhere. So I do think we need to be careful about how we address this issue and, at the very least, as the noble Baroness has just said, make it absolutely clear that fishing trips through FoI requests are out and that the Government would not seek to get involved in what could happen commercially unless there were some evidence that freedom of inquiry or speech had been compromised.

[Lord Wallace of Saltaire (LD)]

My Lords, I hope that the Government will take this away, consider whether there is a way of adapting to some of the valid points made on these amendments and, if necessary, come back at Third Reading—when, I suspect, any further government amendments would be welcome.

I will briefly raise a question that I have already raised with the noble Baroness’s private office, which is how Clause 9 on overseas funding relates to a substantial clause of the National Security Bill, which had its Second Reading yesterday. It seems in some respects to overlap or possibly duplicate it. We have to be very careful about the potential to ask universities to supply further information, answer reports and weigh down their central administration. We already have the National Security and Investment Act, which lays down a number of obligations on universities, which they are fulfilling—justified but additional burdens. This Bill and the National Security Bill will potentially add a further layer of detailed reporting by universities to government, which I am not sure government will be entirely capable of handling. I wish to mark that before those two Bills pass: we should be very clear that they are compatible with and complement, rather than contradict, each other.

Having said that, the question of funding and student unions wants looking at. I was not aware that there is significant overseas funding for student unions. I suppose it is possible that the Chinese, Saudi or even Russian Governments could decide that covert funding of student unions would be a way to influence the British debate, so perhaps there is a half-justification for this. But these Benches, having talked to a number of student unions, are concerned about these small, underfunded bodies, which have a very rapid turnover of officers—as is their nature—having burdens placed on them that are heavier than they can cope with and are not justified by the situation. I mark that as a caveat and hope that the Government take it back for further consideration.

[Baroness Barran (Con)]

My Lords, I will address this group of amendments relating to overseas funding and the application of the reporting requirements to the regulator. Amendment 26, tabled in the name of the noble Lord, Lord Collins of Highbury, seeks to ensure that it is the governing body of a constituent institution rather than their registered provider that must report information required under Clause 9 to the Office for Students. This is rather complex, in that the duty of the OfS in Clause 9 is to be exercised via the existing regulatory regime for registered higher education providers. The OfS already has the power to obtain information from providers.

New subsection (4), which is the subject of this amendment, refers to Section 8(1)(b) of the Higher Education and Research Act 2017. This requires that there is a condition of registration under which the governing body of a provider must supply the OfS with information for the purposes of the performance of the OfS’s functions as the OfS may require. This is achieved by registration condition F3, as described in the OfS’s regulatory framework, which applies to providers and not to constituent institutions.

The approach in proposed new Section 69D of the 2017 Act is that the OfS may require the governing body of a provider to supply information about relevant funding received by the provider or “a connected person”. A connected person is defined in subsection (6) as including

“a constituent institution of the provider”.

The noble Baroness, Lady Royall, asked for clarification and I hope that that is clear. If it is not now, it may appear clearer in Hansard.

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[Baroness Thornton (Lab)]

Noble Lords will know that we have galloped around the director of free speech’s appointment several times at Second Reading and in Committee. I thank the noble Baroness, Lady Bennett, and my noble friend Lord Blunkett for their support. The noble Lord, Lord Wallace, and I are obviously still at one in our concerns about this matter.

Amendment 29 would subject the appointment of the free speech director to confirmation by a Commons Select Committee and compel them to report to Parliament every year on the impact their role is having, the implementation of the Bill and the state of freedom of speech at the providers. This is important because if the Bill is to do what we want it to do—deliver protection and support for freedom of speech—then the director who is responsible for that, the regulator, should be accountable to Parliament. The fact that this person sits on the board of the Office for Students, and is therefore only the chair of the board accountable to Parliament for that work, is not satisfactory. This is too important to be delivered without having any accountability to Parliament for the director of freedom of speech, both on their appointment and the work that they do.

I am not going to repeat everything I said in Committee and earlier stages about this. I think this legislation was pre-empted by the appointment already being made—I am not absolutely certain it has happened yet, but I think that the interviews were taking place during the summer—and that is a shame, but we can rectify that to a certain extent by making this person accountable to Parliament. I beg to move.

[Lord Wallace of Saltaire (LD)]

My Lords, my name is on Amendment 30, which is an alternative version, and I wish to add my concerns. The Minister will know that there has been a lot of controversy about the overall public appointments process. There has been criticism in the press and from people who have been involved in acting as independent advisers on public appointments, in general and in particular.

The appointment of the current chair of the Office for Students was particularly controversial. There was criticism that the balance of the appointing committee appeared to be much more political than expert, and that the person appointed appeared to have no previous qualifications or expertise for the job, beyond having been a Conservative MP who had lost his seat and managed Boris Johnson’s campaign to be Prime Minister. That does not give us great confidence in the appointment of a freedom of speech champion; it also lessens confidence in the sector that the appointment process had been started so early. The Minister will be aware from the letter she had from a number of leading academics that this is one of their active concerns.

Given the particularly controversial nature of this appointment, if you want to achieve a degree of public confidence among those who will be affected by it in universities and elsewhere, it pays if it is seen to be a fair, open and reasonable process. That is not the case at present, and rumours of the sort of people who might be appointed—the names scattered around include those of one or two other Members of this House—would not at all assure the sector, so this is a particularly important process and appointment.

I ask the Minister to give us an assurance, as strongly as she can, that Universities UK, the Russell group and other stakeholders will be consulted about the process and the qualifications needed in such a person; that the appointing committee will be appropriate to the task to be undertaken; and that the Government will ensure, as far as possible, that the person appointed commands the confidence of those whom he or she will be regulating. That is not too much to ask but, against the context of what we have seen with public appointments in the past three or four years, it is a necessary ask. I hope she will be able to take us some way in that direction.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I have attached my name to Amendment 29 in the names of the noble Lord, Lord Collins, and the noble Lord, Lord Blunkett, which was so ably presented by the noble Baroness, Lady Thornton. Having heard those two speeches, I will be extremely brief because the case has been very powerfully made. At this stage these are probing amendments, but there is a need for a strong response from the Minister.

As the noble Lord, Lord Wallace, said, there is very grave concern about the nature of public appointments in many areas. If you combine that with the very grave concern that has been expressed from all sides of your Lordships’ House about the Bill and its operation, it makes this a particularly crucial response from the Minister.

I also note that in Committee there was an amendment to put a sunset clause on the Bill. It was not my amendment, but I attached my name to it. It was not brought back so I have not pushed forward with it, but that would have been an alternative way of tackling this problem; in some ways it would possibly have been a stronger way. Given where we are now, at the end of Report, we need to hear some very strong reassurances.

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[Baroness Barran (Con)]

I am afraid that I do not strictly know the answer to the noble Baroness’s question, but that would go absolutely against the spirit of the way in which our public bodies and arm’s-length bodies engage with our Select Committees. I cannot imagine that would be the case, but I will clarify for her whether it is even a possibility and write to her on that point.

[Lord Wallace of Saltaire (LD)]

The reason why we stress the importance of this appointment commanding confidence is that, when we began with the Bill—in particular with the think-tank paper that fed into it—there was a sense of “There is a problem here; the universities are desperately left-wing and we need to control them.” Many of us start from the position, on the contrary, that our universities have a worldwide reputation and are among our country’s greatest assets. If we are to maintain that reputation and the quality of those assets, we need to make sure that those who regulate them work with them, not against them. Finding some way of making sure that this key appointment starts on the right balance, with the right relationship with those it has to regulate, is therefore very sensitive and important. However the Government do this matters enormously.

[Baroness Barran (Con)]

The noble Lord makes several important points, the first being the quality of our universities and the pride that we all take in that—the Government echo the sentiments he expressed about their quality and the global esteem in which they are held. We take this appointment extremely seriously, hence the fact that we are following the public appointments process.

The role of the regulator is very sensitive, as the noble Lord understands extremely well, and that is absolutely why there is the level of transparency and accountability to Parliament that I just set out. We take this extremely seriously, for some of the reasons the noble Lord expressed. The only point I might disagree on is that the driving force behind the Bill was a concern about freedom of speech within our universities, rather than a particular political angle, but we can perhaps discuss that outside the Chamber.

Most recently, the chief executive of the OfS went before the Education Committee as a witness in relation to controversial research content and free speech. If the focus of the appearance were to be on free speech in the future, the director for freedom of speech and academic freedom may well of course be involved with that.

Given what I have said, I hope that your Lordships agree that there are sufficient safeguards in the Bill as drafted to deal with these important points of concern. I hope that the noble Baroness opposite will withdraw her amendment.

Higher Education (Freedom of Speech) Bill

Lord Wallace of Saltaire Excerpts

3rd reading
Tuesday 13th December 2022 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

My Lords, let me begin by thanking noble Lords for their important contributions during all stages of the Bill’s passage through this House. As we have debated, freedom of speech is critical to modern society and is the lifeblood of our higher education sector. This Bill will establish new mechanisms for ensuring that freedom of speech is properly protected.

The discussions we have had since the Bill was introduced in this House have resulted in important clarifications, which we debated on Report last week. For example, we discussed the very definition of freedom of speech. I am pleased that we have introduced amendments which make clearer what we mean by that term, referring to Article 10(1) of the European Convention on Human Rights as it has effect in the UK. I am grateful to the noble and learned Lord, Lord Hope of Craighead, for spearheading the discussions on this point.

We have also addressed drafting problems to which noble Lords drew our attention. We have avoided inadvertently giving alumni the same protections as current students. We have also clarified that the new power given to the Office for Students to give guidance on supporting freedom of speech is not related to the duty on higher education providers and their constituent colleges to promote the importance of freedom of speech and academic freedom. I thank the noble Lord, Lord Wallace of Saltaire, and my noble friend Lord Willetts for their amendments in Committee that brought these issues to light.

We have also made a breakthrough on an important issue. Building on the progress made in the other place, we have agreed to ban the use of non-disclosure agreements by providers and colleges in cases of sexual misconduct, abuse or harassment, or other forms of bullying and harassment. I thank the noble Lord, Lord Collins of Highbury, for tabling this amendment, which the Government supported. Significant progress has been made in this area in the last year, with many institutions signing up to the voluntary pledge not to use NDAs launched by the previous Minister for Higher and Further Education, my right honourable friend Michelle Donelan, in conjunction with Can’t Buy My Silence. I am sure this amendment will be celebrated when this Bill is brought back for consideration by Members of the other place.

I turn now to the provision which has generated the most discussion: the tort. Last week, the House decided to remove the relevant clause from the Bill. The Government will naturally reflect on this verdict and the arguments advanced to support it very carefully indeed. Of course, I am disappointed that noble Lords were not persuaded by the government amendments, which we tabled to ensure that a person could bring a claim only if they had suffered a loss and that claims could be brought only after a complaint scheme had been used. I will not repeat the arguments in favour of retaining the tort, subject to those amendments, as they have already been rehearsed at some length. However, Ministers continue to believe that those arguments have genuine force and validity.

On Report, the noble Baroness, Lady Thornton, raised some remaining concerns about the new powers of the Office for Students and how they might impact on commercial partnerships of higher education institutions, in particular university presses. I hope the noble Baroness has received my letter. If it would be helpful, I would be more than happy to meet with noble Lords who remain concerned to clarify those points, as needed. The noble Baroness also asked whether the Office for Students could refuse to give evidence to, for example, the Education Select Committee. We have spoken to the Office for Students, which has reassured us that it would co-operate fully with requests from Select Committees.

As a latecomer to this Bill, I have been struck by the level of engagement with it. That means there is a long list of people to thank—perhaps too many to mention by name. There has been an extraordinary number of constructive and helpful contributions, both during our debates in the Chamber and in discussions outside it.

These have included the noble Baronesses, Lady Thornton, Lady Smith of Newnham, Lady Garden, Lady Morris of Yardley, and Lady Chakrabarti; the noble Lords, Lord Collins, Lord Wallace of Saltaire, Lord Triesman, and Lord Hunt of Kings Heath; my noble friends Lord Willetts, Lord Johnson, Lord Moylan, and Lord Sandhurst; the right reverend Prelate the Bishop of Coventry; and, last but definitely not least, the noble, and noble and learned, Lords on the Cross Benches: the noble and learned Lords, Lord Hope and Lord Etherton; the noble Lords, Lord Grabiner and Lord Macdonald of River Glaven; and the noble Baronesses, Lady Shafik, Lady Deech, Lady Falkner, and Lady Fox of Buckley.

There are many other noble Lords on all Benches whose speeches in debate have lent weight to our proceedings. While we may not have been in agreement on all these issues, I am heartened that the constructive debate heard in Committee and on Report has fostered a consensus in this House on the need for this Bill. I thank all of your Lordships for your engagement.

Lastly, I would like to express my profound gratitude to the stalwart members of the Bill team: Sophie Cahill, Jamie Burton, Vicki Stewart, Zoe Forbes, Samer Almanasfi, and last but definitely not least, Suki Lehrer. Throughout the last six months, they have provided nothing short of superlative support to me and to my ministerial colleagues, my noble friends Lord Howe and Lady Penn, and who have worked long hours, never without a smile on their faces—sometimes virtual, on Teams. Ministers, and indeed the House, are in their debt. I also express my personal thanks to my noble friend Lord Howe. In my words, he has definitely done the heavy lifting on this Bill with his professionalism, concern and extraordinary attention to detail, which are all well known in this House.

We send this Bill back to another place with, I hope, the same ambitions as when it reached your Lordships’ House. We need to support a higher education sector in which students and staff are free to speak their minds and engage in contentious debates. I believe that this Bill has the potential to make a crucial contribution to that aim, and I wish it well.

[Lord Wallace of Saltaire (LD)]

My Lords, I thank the Minister. I also thank the noble Earl, Lord Howe, for the way in which he handled Committee and Report on the Bill, and the various consultations. It was a model of how Ministers should engage. We had a very constructive process with the Bill, for which I am, and all of us are, very grateful.

This Bill was drafted by the last Secretary of State but five. It was eventually inherited by the current team in the Department for Education, with what I dare say was an element of surprise as well as interest: it was, after all, initially drafted almost entirely by Policy Exchange through a range of papers, and Policy Exchange had based its analysis very heavily on American as much as British sources. There were therefore oddities in the Bill, which I hope we have ironed out as we have gone through.

Many of us were very much concerned about the potential for this Bill to damage university autonomy and extend state authority, including Members on the Conservative Benches and others. There are a number of areas in which we have made considerable progress on the defence of freedom of speech. For many of us, there is the removal of civil tort, not simply the reduction of the weight of the civil tort on universities. That remains to be sorted out in the Commons. I hope that the current ministerial team will reflect very deeply on whether to insist on its own amendment or to accept the amendment which a substantial majority in this House produced.

There is also the outstanding issue of the appointment of the new free speech champion. I very much hope that the Government will take particular care in finding a candidate for that position who will be accepted—possibly even welcomed—by the sector he or she sets out to regulate.

Still outstanding is the question of the degree of overlap between what is set out in this Bill, the recent National Security and Investment Act and the current National Security Bill. All of them impose new duties and new reporting requirements on universities, some of which have not yet entirely been ironed out, particularly for the National Security Bill—I hope we will be able to do that as it proceeds through the House.

I thank in particular the noble Baroness, Lady Smith, and the noble Baroness, Lady Garden, who took the burden when I was away for part of Committee, as well as our team, including Sarah Pugh in our Whips’ Office. I know that the Bill team must have worked extremely hard throughout this. One recognises that civil servants are often not thanked enough for the criticisms they accept and the burdens they undertake.

Our universities are a huge national asset. They are an important part of our soft power in the world and a major source of our international income. We all need to be sure, as we have done in considering the Bill and as we look now at the National Security Bill, that we do not damage our universities in dealing with some of the problems and threats which they face, sometimes from their students, sometimes from visiting speakers, and sometimes from foreign powers, because they are such a large part of what makes this country very special.

[Baroness Thornton (Lab)]

My Lords, I thank both the Ministers, the noble Baroness, Lady Barran, and the noble Earl, Lord Howe, and also the Bill team for their accessibility and friendliness throughout the whole of this process. I also congratulate the noble Baroness on her list of commendations of noble Lords who have participated, and wish to second that. Obviously, I need to thank my noble friend Lord Collins, who is probably on his feet in the Grand Committee, which is why he is not here. He did most of the heavy lifting around the Bill, particularly around the—for our part—unlamented Clause 4 and the non-disclosure amendment, which the Government accepted and for which we are very grateful indeed. I also thank Liz Cronin in the Lords office and our team in the Commons, Jonny Rutherford, Vicky Salt and Tim Waters, who provided us an enormous amount of support, which, as the Ministers will know, you need when you are in opposition and dealing with complex pieces of legislation. The stakeholders have also provided us with great briefings; of course, some of them are serving vice-chancellors and heads of colleges here in this Chamber.

The question at the outset was whether the Bill was necessary at all. The answer is that the jury is still out, but probably not quite as out as it was at the beginning of the process. I think we can say with some confidence that we are sending back to the Commons a piece of legislation that is much improved from the one we started out with. The reason for that is twofold. The Ministers and the Bill team engaged seriously all the way through this but this House also engaged in a non-partisan, cross-party examination of the Bill, and I congratulate noble Lords on that.

There are still some outstanding matters which will need further attention, such as the role of the students union, but also the issue that the noble Baroness referred to, which is Clause 8, previously Clause 9. I and my noble friend Lady Royall, the noble Lords, Lord Patten and Lord Wallace, and others raised the risk of duplicating security regulations and the risk that the Bill might pose to the business community, the commercial relations and the trading futures in which our universities have been successful.

I definitely welcome the Minister’s invitation to have a meeting, because I think the Russell group and others need to further discuss this whole matter, particularly when draft statutory instruments and guidance are under consideration. I am grateful to her for saying that. We were still being approached about this as late as last night, because there are still serious concerns among some of our academic community.

I add my thanks for what has been a really interesting Bill. It is slightly outside my normal remit of health and equalities, but I have very much enjoyed being the number two to my noble friend Lord Collins and working with noble Lords on the Bill.

Higher Education (Freedom of Speech) Bill

Lord Wallace of Saltaire Excerpts

Consideration of Commons amendments
Tuesday 21st March 2023 Lords Chamber

[Baroness Lawlor (Con)]

My Lords, I apologise that I did not speak in the earlier debates on this matter because, as I recall, I had not made my maiden speech. I simply add my voice to those who regret my noble friend Lord Willetts’s Motion A1, which I do not support because, as other noble Lords pointed out, it waters down the small protection that existed with the original Clause 4 for academics in many institutions.

An institution has great power: it has powers of office, of man and woman power, of employment and of funds. The original Clause 4 gave a simple and cheaper way for an individual academic who was suffering because his or her freedom of speech was under threat. I assure noble Lords that it is under threat in many universities, and especially the one I know best: my own university, Cambridge. Hardly a day goes by without threat after threat reaching the newspapers of academic freedom being impinged on. I draw noble Lords’ attention to Arif Ahmed’s publications and submissions to an earlier Committee on the Higher Education (Freedom of Speech) Bill. The problem has not stopped.

For those reasons, I am worried about Motion A1 going through. It will make life much more expensive for individual academics, who often plough a lonely furrow against top-heavy and powerful institutions. I would like to restore the original Clause 4, which gives a straightforward and cheaper alternative to someone taking action against an institution. I do not believe that there will be vexatious causes that involve universities or institutions in long and litigious claims that cost money and time, because existing law covers these matters in many respects. Cheaper claims can be dealt with under protocols before action or by agreement.

So Clause 4 is necessary not only for free speech but for free thought. It is not just about student union bodies, although they should observe this; it is about how academics pursue their subjects and whether their reading lists and courses are in line with official thinking—universities have a powerful officialdom. For those reasons, I remind my noble friend Lord Willetts of his having to be smuggled into the University of Cambridge not many years ago. I do not believe that my noble friend’s amendment would prevent that happening again. I thank noble Lords for their attention.

[Lord Wallace of Saltaire (LD)]

My Lords, we have demonstrated that there remains a range of opinion about the nature and size of the problem, and the appropriate response to it. Therefore, a compromise amendment is perhaps the best point for us to end up at. Some of us feel that this is an unnecessary intervention into the autonomous institutions that are our universities, and conservatives are supposed to believe in the autonomy of institutions and in not promoting undue state interference. I remind those on the Conservative Benches that, if you are in favour of a smaller state and deregulation, particularly of banks and companies, you should be careful about how much you are in favour of detailed or excessive regulation of autonomous bodies like universities.

After all, our universities are very highly rated in global terms; they are an asset to this country. Boris Johnson, when he was Prime Minister, used to talk about them as one of the major planks of our soft power in the world. We need to be very careful that we do not damage them.

Listening to the noble Baroness, Lady Lawlor, I was thinking of my time as an undergraduate at the University of Cambridge, and the behaviour then was, in some ways, not entirely different from the way it is now. I recall the occasion when my wife and a number of other Oxford students prevented an ambassador from speaking at an Oxford student occasion, and of my first year as a university teacher at the University of Manchester, when a number of students blocked the Secretary of State for Education from speaking at a university event. These things are not entirely new.

As the Minister suggested, we have of course seen a number of cultural changes. While the cultural changes mean that universities have become more sensitive to student opinion because student funding has changed, another change is that social media has widened the debate about what is acceptable. It has imposed, from different directions, the new cancel culture among the young, which we did not have in my generation and in most of the time that Members of this House were at university. We all have to face that problem—it is not solely a university problem—and we have to answer it at the levels of political leadership and of society. I very much hope that, when the Bill returns to the Commons, the decision on this will not be reversed.

When we talk about culture, I am concerned about those who talk about a culture war. I have read two op-eds in the Sunday Telegraph in the last month which have suggested that the pursuit of a culture war is the way for the Conservatives to win the next election, and that they should imitate the example of Governor DeSantis of Florida, who is pursuing, so the articles argued, a successful culture war against wokeism, cultural Marxism and the universities of his state. I know that there are some on the right wing of the Conservative Party who would like us to go down that route, but it would be a very dangerous route. We do not want this country to become as divided a society as the United States has become, in which a governor educated at Yale and Harvard now says that he was exposed to communist ideas as an undergraduate at Yale—I suspect that that is a slight exaggeration—and who thinks that the way to ensure his path to a presidential nomination is by dividing the country between the educated and those who do not have higher education. We do not need that in this country, and it would be extremely dangerous for ring-wing Conservatives to try to take that direction.

On a different level, I find the argument that we should pass Bills so that we send a signal a rather worrisome idea; I think that we should pass Bills so that they actually do something, that they enforce something and that they change the way in which we behave. Sending signals is something which political speeches should do—not Acts of Parliament.

I ask the Minister about the time of the implementation of the future Act, now that the Bill has been delayed somewhat; it will clearly be delayed again by going back to the Commons. I hope that he can confirm that there will be no attempt to implement the Act in full by the beginning of this coming university year, because it will take universities some time to consider it. He may not be able to give me an answer at the moment, but that is an important fact that we now need to have addressed.

I hope that the Minister also takes note of some of the criticisms which the Committee on Standards in Public Life and others have made about the appropriateness of appointing committees. We heard the noble Lord, Lord Moylan, discuss regulatory capture, but we have also heard those who oversee public appointments committees talking about the inappropriateness of people who know very little about the subject for which a person is being appointed deciding on the nature of the appointment. There is a balance—which I hope the noble Lord, Lord Moylan, will accept—between regulatory capture and political appointments being made for political reasons, which is important when one is considering such a major asset to this country as our universities.

I welcome the Government’s acceptance of this amendment. I very much hope that the Common Sense Group and others on the right wing of the Conservative Party will not attempt to take it back when it comes to the Commons and that the Government will re-establish a relationship with our universities, both staff and students. The relationship between free speech for students and free speech for staff has, on occasions, been muddled in all our debates on this Bill. I hope, therefore, that this Bill as now amended will become law.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, there is little more for me to say, other than to thank noble Lords for their contributions to this debate and for the way in which, amid many doubts and hesitations, Members of the House have been willing to look for compromise and common ground on what I know has proved a difficult set of issues.

I thank in particular the noble Lord, Lord Grabiner, especially for his positive comments and remarks on the role of the regulator, as well as my noble friend Lord Lucas, the noble Lord, Lord Triesman, and, for his words about the need for us all to look for consensus, the noble Lord, Lord Collins.

I simply say to the noble Lord, Lord Wallace, that I too instinctively fight shy of the suggestion that Governments should unduly interfere with the workings of our universities. However, some of his remarks suggested to me that he does not accept that there is a serious problem to be addressed. If that is his view, I believe that he is in a minority in this House.

[Lord Wallace of Saltaire (LD)]

I think we have a large social problem, which has been partly raised by social media, in the intolerance of the young as a whole and cancel culture. It stretches across our society and we have to deal with it, but it is not purely a problem for universities, nor is it thoroughly based in universities—and it certainly does not result from indoctrination by left-wing staff.

[Earl Howe (Con)]

I am grateful to the noble Lord, but I think we all agree that universities, par excellence, are places that should be safe spaces for freedom of speech, as my noble friend Lord Willetts said, whatever may happen outside the confines of the campus.

As to the timing of the coming into force of the Bill, I can tell the noble Lord that it will not be before the start of the next academic year. The Government need to consult on the regulations and indeed draft them, which will take a little time.

I simply cannot agree with the noble Baroness, Lady Fox, that my noble friend Lord Willetts’s amendments represent a fudge—in other words, a watering down of the tort or a “soft tort”, as my noble friend Lord Moylan put it. With respect to my noble friend, I utterly disagree with him that the amendments send a signal, or any semblance of a signal, to the other place or the world that the Government are not serious about protecting freedom of speech in our universities. The idea of watering down, I suggest, is more theoretical than real.

As I said earlier, the vast majority of complaints will be successfully handled and dealt with without any need to go to court. However, where a complainant believes that that has not happened, they will still have the option of going to court. In other words, the amendments from my noble friend Lord Willetts underscore what we think will happen anyway.

I hope that Members of another place will come round to that view and that both Houses of Parliament will reach the endpoint that Ministers and the Government have felt it their duty to try to achieve, which is consensus.