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.