Higher Education (Freedom of Speech) Bill

Lord Willetts Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Lord Willetts (Con)]

My Lords, I begin by declaring my interest as a visiting professor at King’s College London—about which we have already heard—and the chancellor of the University of Leicester.

The Minister began his excellent speech at the starting point that I am sure all of us on all sides of this House share: the importance of university as a particular place where freedom of speech is not just practised but learned and passed on to the next generation, who may learn how to disagree better than they managed earlier in their educational careers. So, universities do matter. They are places which should offer protection from social media storms, cancel culture and—dare we say it?—political pressure. But they have not always been able to do this.

I found the most illuminating investigation of what can go wrong in our universities in the independent review of what happened at the University of Essex produced by Akua Reindorf. The review identified that, in a specific instance, the university had essentially attached far more weight to the equality duty than to the promotion of freedom of speech, which was exacerbated by a misunderstanding of the protected characteristics under the equality duty in the very sensitive area of gender reassignment. Things can go wrong; we recognise that. However, I hope that the Minister will be able to answer some real concerns of substance about this proposed legislation.

First, how is it going to work? I remember a previous round of concern on this issue which led to the 1986 Act, and we already have the Office of the Independent Adjudicator and some role for the OfS. Now, this legislation proposes two very significant extensions of powers—first, for the Office for Students, with a very significant new regulatory responsibility. In addition, we have this statutory tort provision, which could well mean that there will be vexatious, difficult and complex legal proceedings. Can the Minister explain why, faced with what is often a policy choice between going down the regulatory route or the legal protection route, both are to be applied in this legislation, and why he thinks both are necessary?

Secondly, will the Minister explain whether the aim is that all lawful free speech should be permitted in universities? That would be a very simple and clear starting point, which seems to be what Ministers are saying. However, on the very first day after the legislation was proposed, we already had an example of how tricky this is when the Minister said that it would enable Holocaust deniers to speak and was promptly slapped down by No. 10 saying that they should not. The Ministers in the Department for Education are currently pressing universities, for very understandable reasons, to endorse the wide-ranging IHRA definition of anti-Semitism. Everything covered in that definition is clearly objectionable, offensive and wrong. I am no lawyer, but it is not clear to me that everything which would be in breach of the IHRA definition of anti-Semitism is illegal. If it is not illegal, would it therefore be protected under this free speech legislation—in which case, why are Ministers currently pressing universities to take and act on a definition of anti-Semitism that seems potentially in conflict with the legislation they are now trying to pass?

Let me give a second example: the Prevent duty. As a Minister, I was very much aware of the pressure from the Home Office, which was interpreting the Prevent duty and definitely wanted universities not to invite speakers it thought would foment Islamic extremism, but it did not regard what they were going to do as necessarily illegal. The Home Office thought that universities had a responsibility that went beyond simply the protection of an absolute freedom of speech within the law. The Minister needs to explain exactly what he means when he says “lawful free speech”. If, as I suspect, in reality there will be statements that the Minister would expect not to be protected by the new director of free speech, he will understand as soon he has conceded that point why the appointment matters so much. We are passing legislation that will enable a regulator not to protect under free speech free speech which, nevertheless, in its most absolute form, would be allowed. No wonder there is considerable anxiety in this House about that power.

My third point to the Minister arises from my respect for the wide range of roles he carries out in this House. Yesterday, in this very Chamber, I think he was speaking about military personnel and defence issues. May I invite him, as he is clearly seen as an extremely senior member of the Lords ministerial team, to consider also taking responsibility for the online harms Bill when it comes to this House? I look forward to hearing him explain the importance of protecting not just children but adults from “harmful content” and “harmful communication”. When Ministers are pressed on why these provisions are necessary, we are told that it is because they will cause “serious distress”. This is snowflake culture. “Serious distress” is to be used in a separate piece of legislation going through Parliament in this Session. There will also be two sets of secondary legislation: one to implement this Bill, which will be about freedom of speech, and a separate body of secondary legislation to provide for the regulation of online harms. It is perfectly possible for a university to be fined for breaching this legislation because it would not permit something to be said which an online tech giant would be fined for transmitting. This is a ludicrous position to have got into. As both measures are going through Parliament at the moment, I very much hope that this Minister, above all, will ensure some consistency between them.

Higher Education (Freedom of Speech) Bill

Lord Willetts Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I should notify the Committee that, if this amendment is agreed to, I will be unable to call Amendments 32 or 33 owing to pre-emption.

[Lord Willetts (Con)]

My Lords, perhaps this is the moment at which I might intervene on Amendments 33 and Amendments 54 to 56, which are in my name and that of the noble Lord, Lord Stevens. I declare my interests as a visiting professor at King’s College London, an honorary fellow of Nuffield College, Oxford, chancellor of the University of Leicester and a member of the board of UKRI.

I am going to rise to the challenge from my noble friend Lord Moylan. My understanding of the purpose of this Bill is to enhance the protection for freedom of speech in universities. That is an admirable objective and I support it. I have some doubts about the practical effects of this Bill, which this Committee is scrutinising, but the objective is the right one.

The evidence is clear—a point made by the noble Baroness, Lady Fox, in the debate on Monday, which I sadly was not able to attend—that, recently, universities have become overpreoccupied by probably a mistaken interpretation of their equality duties and have put insufficient focus on freedom of speech. I personally think that debates such as the one we are having and the shift in attention to this is already beginning to improve things. It is right, therefore, to look at ways in which we might reinforce the provisions of the 1986 Act. This Bill undoubtedly does that, both by a tort provision and a regulatory provision. I personally think that trying to use both of those instruments is overdoing it, but the powers of the regulator, the OfS, on their own are considerable; they will change the balance.

Amendment 33 would make explicit that this protection for freedom of speech sits alongside other duties, such as those in Prevent and in equality legislation—and also, I may add, labour market protections. I was quite interested in the way that the Minister, in his interventions on Monday and earlier today, has focused so much on employment law and labour market protections. One reason why cancel culture will never be able to do quite as much damage to higher education in the UK as it has done in the US is, paradoxically, because of the different framework of labour market and employment protection that we have in this country. It is quite a challenge to those of us historically in favour of deregulating labour markets. This is a context in which employment protection actually works to protect freedom of speech.

In the debate on the previous group of amendments, the Minister put the point very well that there are other duties in other legislation and what this legislation does is to put an obligation on freedom of speech alongside those. In fact, the main purpose of Amendment 33, I can now see, is to put into primary legislation exactly what the Minister has already assured us of: that this obligation on freedom of speech goes alongside other obligations such as the equality duty or Prevent duty.

One can sense from our debate that there are temptations to go in different directions. One temptation is to say that these provisions for freedom of speech must override other legislation, or perhaps—though we have had less of this—be subservient to other legislation. I do not think that it is the intention of the Government that they should either override or be subservient; they are alongside. I suspect that, as the Committee continues, we will find that there are some people who see an opportunity to make this override equality legislation, some people who want it to override Prevent legislation, and a very small group who would like it to override both. I personally think that the wording in this amendment,

“having due regard for all other relevant legal duties”,

is the right way to make it clear that there is an intention for this to be alongside those other duties.

As to the effect that the other duties have, we heard an important intervention earlier that one problem is that there has been a misinterpretation of the equality duty. The problem is less the actual equality legislation and rather a misunderstanding of it. For me, the most illuminating case is the Akua Reindorf report on what happened at the University of Essex, which was shocking. It was made absolutely clear that what happened was based on misunderstandings of provisions in equality legislation, particularly, for example, that the protections are for gender reassignment, not gender identity. Similarly, the Prevent duty is another important framework of legislation, and we need to ensure that it is balanced with freedom of speech.

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[Lord Willetts (Con)]

Briefly, the debate we have just had shows why the amendments are necessary. They do not change the underlying framework of law but make explicit something which otherwise would just be implicit. There are benefits for universities and people participating in them by it being explicit.

[Baroness Chakrabarti (Lab)]

My Lords, I forgot to declare my interests as a visiting professor of practice at the LSE and in receipt of research services from a PhD student from King’s College London. To support the noble Lord, Lord Willetts, if this is becoming such a difficult area, it will be tempting for regulators that “may” issue guidance not to do so in a particular contentious area. We go down this road or we do not, to some extent. If there are rows between competing minority interests and around particular foreign policy issues, then if I were a regulator, it would be all too tempting to sit back. That has sometimes been the case in the past, whether with the police or regulators. That is in support of the rather tighter duty that the noble Lord, Lord Willetts, proposes to put on the regulator.

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Tabled by

[Lord Willetts]

33: Clause 1, page 3, line 36, at end insert “, having due regard for all other relevant legal duties”
Member’s explanatory statement
This amendment is to ensure – and make explicit – that the Bill does not impose duties on universities that are inconsistent with other legal duties that apply to them.

[Lord Willetts (Con)]

My Lords, I would like briefly to—

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

I should point out to the noble Lord that if he wishes to speak again on his amendment then I will have to put the amendment and it will be open to further debate. Of course, I do not seek to influence the noble Lord in any way.

[Lord Willetts (Con)]

I will resist. I shall not move the amendment, and I look forward to further exchanges.

Amendment 33 not moved.

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[Baroness Falkner of Margravine (CB)]

My Lords, on this occasion, I declare my interest as chair of the Equality and Human Rights Commission.

I had a lot of sympathy for the myriad examples put up by the noble Lord, Lord Sikka. In fact, beyond sympathy, to address the noble Lord, Lord Moylan, I had some deep concerns. However, on hearing many of those examples, they were entirely familiar to me. I recall having come across them in the media, if nowhere else.

The point made by the noble Baroness, Lady Smith of Newnham, about how this amendment would apply to third parties commissioning research was really significant. All manner of bodies use university academics to do a piece of research for them, including collecting and collating survey evidence and/or other evidence—particularly in the social sciences and humanities, where it is a bigger problem because the boundaries are less clear-cut.

In the past, much of our non-statutory guidance has been based on that kind of research because you seek to find an evidence base for whatever you are saying. We have had complaints about some of the stuff we have said; in fact, my daily joy is opening my parliamentary email and finding complaints addressed to me in that capacity rather than the correct capacity. However, when you look into what people are complaining about, you can find that the survey evidence was perhaps interpreted in a certain way or that the methodology does not stand up today to the contemporary standards that one would wish to use. The noble Baroness, Lady Chakrabarti, rightly raised some of the ambiguities that lie there if this serious and important amendment is taken away and reflected back to us on Report.

The noble Baroness also raised the issue of academic standards. You get a great diversity in institutions as regards the quality of research. If you found that you perhaps ended up having commissioned an institution that did not deliver for you, I would hope that any amendment that we might seek to make would emphasise the fact that you can only take reasonable steps and that where it says in proposed new Section A8(2) that

“providers must not require changes to academic research as a condition for a grant”,

the change does not come at that stage; it might come when you look at the data collection.

An example of data collection in our case is that the majority of the UN conventions that we apply tend to have been written immediately after the Second World War, generally between 1945 and 1960, and they use language that muddies the water. The convention on the elimination of racial discrimination is a good case in point because it refers over and over again to nationality, whereas frequently what we look for in racial discrimination is not necessarily the Polish person suffering race discrimination but potentially the Afro-Caribbean or African or Asian person. You commission the research and then you discover that the dataset does not hold up, because nationality was taken into account by the researchers rather than particular ethnicity; you might have wanted a narrower framework.

I urge the Minister, if he is inclined to take on board the amendment, which is significant and important, to clarify those things for us when we come back to this.

[Lord Willetts (Con)]

My Lords, I will briefly make three comments on this debate; I realise that I will not occupy the same moral high ground as most of the participants in the debate so far.

The reality is often that co-funding, with public money and private money, is going into research projects which are believed to be of value for the British economy. I will give your Lordships a simple example. You may find that some public funding is going into a wind tunnel and some Rolls-Royce money is going into it so that it can research the functioning of a jet engine and improve Rolls-Royce’s capacity to be a market leader in jet engines. A lot of that goes on. Indeed, in a different part of the woods, we are told that more of that should go on and that we should be thinking more fully about how we use publicly funded research to promote business investment. There are lots of reasons for being wary but those type of relationships exist, and if anything, are being encouraged, and would not be possible under the provisions here. That is my first point.

Secondly, the American pressure on us with regard to the research we conduct and then publish, is because by and large they think we are very naive about what they call dual-use research of concern. They think that we publish lots of stuff which is the equivalent of publishing nuclear physics in the early 1930s. There is a lot of pressure from them for us to publish less, and they think we are naive about some of the possible implications of the research. If we are to have research partnerships with these international partners, if anything, the pressures are the opposite of the ones we have been hearing this afternoon.

My third point is really a question for the Minister. This is an issue which raises another angle where there is concern about this legislation. It is marvellous to have a Minister from the Department for Education as well as a Minister from the Cabinet Office. Several provisions of the Bill relate to the activities of BEIS and our research effort. The research activities of universities are not part of the DfE, and it would be good to be reassured that, on many provisions of this legislation which affect research capacity, we will have the voice of the business department, which is the ultimate responsible body, and that there has been suitable liaison across departments so that implications for research and innovation are properly considered as part of our deliberations.

[Lord Collins of Highbury (Lab)]

Does the noble Baroness not wish to speak?

Higher Education (Freedom of Speech) Bill

Lord Willetts Excerpts

Committee stage
Monday 14th November 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, I agree with the powerful speech of the noble Lord, Lord Grabiner, with the possible exception of his surprising suggestion that the introduction of lawyers is generally a mischief.

I will add a few words on why Clause 4, in my view, should be removed. The duties under the legislation—it is a very sensitive area—should be regulated and enforced by a statutory regulator. The regulator should have sufficient power to resolve disputes and to give a declaration or a statement which will set standards which will then inform all relevant persons of what the requirements are in this context. That will be speedier than civil litigation; it will be less expensive than civil litigation; and it is highly likely to produce a more acceptable result than civil litigation. Despite their many skills, His Majesty’s judiciary is not the best body to determine these sensitive issues. A regulator will have far greater expertise and is far more likely to produce an acceptable result.

I am not persuaded by the views attributed by the noble Lord, Lord Grabiner, to the noble and learned Lord, Lord Hope, as to why Clause 4 is otiose because it will be the law in any event. I have two answers to the concerns of the noble and learned Lord, Lord Hope. The first is that Article 6 of the human rights convention would be satisfied by the ability of someone dissatisfied with a regulator’s decision to bring a judicial review. That would meet Article 6 concerns. Of course, that would have very considerable controls: any person seeking judicial review has to get the permission of the court to bring the claim. They have to bring the claim within a very short period of time—three months, unless there are exceptional circumstances—and judicial review would be available.

The other point that I understand the noble and learned Lord, Lord Hope, to be concerned about is that there is a right to a civil claim whether or not a statute says so. My understanding is that when the court assesses whether a statute confers a right to damages for a breach of the statutory duty, the court asks itself the questions: “What did Parliament intend?” and “Did it intend in this statute, in all the circumstances, to confer a right to damages?” If Parliament were to remove Clause 4 and there were to be an effective regulator with a right to bring judicial review, I would have thought that more than sufficient to rebut the suggestion that you can go to court and seek damages in any event.

[Lord Willetts (Con)]

My Lords, I hesitate to intervene in this debate as I am not a lawyer. We have heard four very powerful interventions from Members of this House with formidable legal expertise. Already, Clause 4 is looking rather vulnerable in light of the arguments that they have deployed so powerfully with their legal expertise. The noble Lord, Lord Stevens, who sadly cannot be with us today, and other noble Members of this House—including me—signalled our intention to oppose the question that Clause 4 stand part of the Bill. Our doubts are reinforced by the formidable interventions we have already heard.

Perhaps I could add, as someone with an interest in public policy in this area, an explanation of where we are coming from. To be fair to the Minister, the case for this Bill is that it backs up the general right to freedom of speech with an attempt to provide more enforceable rights and compensations. The question is whether this provision of a statutory entitlement to tort helps serve that cause at all or whether the Government can achieve their objectives without this new route of civil litigation. The risks are considerable, including, clearly, of promoting vexatious litigation.

There is another significant risk that has not been mentioned so far. For those of us who want to see free and lively exchange of conflicting ideas in higher education—I hope we all do, on all sides of the House—there is a danger that that this type of provision has an opposite effect from the one intended, in that people who are thinking of potentially inviting speakers or organising events at their university are inhibited from doing so for fear that they could potentially find themselves caught up in complicated and demanding legal action; in other words, this could have exactly the opposite effect to the one intended.

I hope that the Minister will also be able to explain to the House why he does not believe that the current arrangements and other arrangements set out in the Bill will not themselves tackle the problem that he is concerned about. Will he accept that with the Office of the Independent Adjudicator there is already a clear process whereby any student who has a concern about the way their university is functioning, including potentially suppressing their freedom of speech, has a right to go to the Office of the Independent Adjudicator, and, beyond that, that ultimately those decisions are of course justiciable? Does the Minister also accept the point that he himself made in earlier debates on this legislation, that there is a framework of employment law which provides protections for academic staff? Indeed, ironically, especially given the preoccupations of my side of this House with a liberal and lightly regulated labour market, one of the best protections we seem to have from the worst of American cancel culture is precisely that we have a stronger framework of employment rights in this area; they could be extended, and we have heard interesting suggestions on that.

If it is not the OIA or employment law, there is indeed the Office for Students. The Government clearly intend that the Office for Students should have new powers to investigate potential infringement of people’s rights to freedom of speech. Often, when we have been confronting other public ills for which we are trying to find a solution, we have turned to an effective regulator. We have already heard powerful interventions this afternoon about the need for an effective regulator in this space. When we have a regulator in place whose powers can be extended in the Bill and, as we have heard so powerfully this afternoon, very carefully defined and set out with greater rigour than we have had so far, it seems odd and completely unnecessary that we feel the need in parallel to create this new tort route as well despite that route being available.

Finally, I return to the dangers in this approach. We had the wonderful observation from the noble Lord, Lord Grabiner, that perhaps lawyers on all sides of the case would find that at least their income rose, and I guess that you can imagine a well-funded litigant and a well-funded university. However, students and student unions are not well funded. There would be a real risk for student unions, which have themselves faced increased legal responsibilities under this provision and would not have the resource to engage in defending themselves against litigation. They are an important place in which students with a wide range of political views have their first experience of organising debates, exchanging ideas and disputing. For the threat and shadow of potential litigation which could bankrupt their student union to hang over them is not a service to the cause of freedom of speech in our universities.

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Moved by

[Lord Willetts]

58: Clause 8, page 10, line 20, leave out “may” and insert “must”
Member’s explanatory statement
The purpose of this amendment is to specify the route through which complaints must go, i.e., the OfS cannot intervene until a university’s own procedures, or those of the Office of the Independent Adjudicator, are exhausted.

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[Lord Willetts (Con)]

My Lords, I will speak briefly to Amendments 58 and 59 in my name and that of the noble Lord, Lord Stevens of Birmingham.

In many ways these amendments follow on naturally from the debate which we have just held in this Committee. It has become very clear that one of the problems that we face is the lack in this legislation of any provision for a coherent complaints procedure which works step by step. A key issue, which will be of concern to many universities, student unions and other bodies, is whether they could find themselves simultaneously facing a civil litigation, an investigation by the Office for Students and a complaint to the Office of the Independent Adjudicator. It would seem extremely damaging and unproductive if all these different types of complaint, all envisaged in this legislation, could go on at the same time. So Amendment 58 is a simple attempt to provide at least an element of provision for sequencing rather than simultaneous investigation.

I realise that the Bill reflects a regrettable loss of confidence in universities as autonomous bodies able to run their own affairs and resolve their own disputes; we have had some vivid examples, for example from the noble Lord, Lord Triesman, opposite, of how those disputes are conducted. Amendment 58 says, “Let’s give universities the first chance to resolve these disputes before they’re then investigated by the Office for Students”. It is an attempt to provide universities with their first responsibility—although not to leave them on their own any longer, absolutely in recognition of the point that the Office for Students would then have the power to intervene.

That leads on to Amendment 59, which tries to specify that the Office for Students really ought not to investigate vexatious complaints. It seems rather absurd and odd that we have a provision at the moment which says that it may or may not investigate vexatious complaints. Why do we not just say that it should not investigate vexatious complaints?

I regard both these provisions as providing some reasonable clarity on the process that will help universities and student unions, while also offering some protection for the OfS itself. We heard, in a very important intervention from my noble friend Lord Johnson, who played a crucial role in the creation of the Office for Students, that of course it is a key regulatory body. The tenor of the arguments from all sides of the Chamber today has been that, if anything, we see an enhanced role for the Office for Students rather than more civil litigation. At least the OfS ought to be able to say to a potential complainant, “You first need to have gone through a process with your university”, and, “I’m terribly sorry; this is a vexatious complaint and we are not allowed to investigate such things”. That will also help provide some definition of the role of the OfS.

In the light of the interventions we have had this afternoon, particularly from noble and learned Lords, I realise that the definition of the role of the OfS in these circumstances needs to go much further. There is much more we must clarify, but I hope these two amendments at least start the process of bringing some necessary clarification.

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Paragraph 19 of the schedule will enable the OIA to make an equivalent rule the other way around. I should point out to my noble friend that Amendment 58 would not in any event result in the OIA scheme having to be used before the OfS could consider a complaint. The OfS scheme will be vital in supporting the strengthened duties under the Bill. It will provide a clear and accessible route for making complaints and seeking redress for all individuals protected by the Bill. It is therefore a key component in ensuring that freedom of speech is protected within higher education. I hope I have offered reassurance about the need for this important scheme.

[Lord Willetts (Con)]

I thank the Minister for that response to a brief but very illuminating debate. I certainly learned from the debate that there are defects in the two amendments that I tabled. The noble Lord, Lord Grabiner, said they lacked sophistication, so I plead guilty to a certain rustic simplicity in just saying what should be done, and I have learned my lesson. I also understand the point that we have to do some investigation to establish whether a complaint is vexatious. However, I have to say to the Minister that at the end of this debate the underlying concern—again, I think, shared across all sides of the Committee—has not really been addressed. It is that some event does not happen, for whatever reason, at a university, and the following day a well-organised critic fires off a letter to the OIA, a letter to the OfS, tries to start civil litigation, writes a letter of complaint to the vice chancellor and phones a couple of newspapers. That is not in the interests of anyone who cares about freedom of speech and higher education. I think all of us on different sides of the Committee would like some greater clarity about the sequencing and the hierarchy that ensures that a student union or a university does not face that issue. However, in light of the Minister’s comments—I completely accept the defects in my amendments—and in the hope that in some way we can return to these debates, I beg leave to withdraw the amendment.

Amendment 58 withdrawn.

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[Lord Hope of Craighead (CB)]

My Lords, following on from the noble Lord, Lord Grabiner, two words in the amendment cause me some concern: “overly reliant”. The problem is that no touchstone is provided in the amendment as to how that phrase is to be applied.

As it stands, subsection (2) gives clear guidance as to what the OfS is to look at. The problem to which the noble Lord, Lord Johnson of Marylebone, has drawn our attention is very widespread. It is not only China that one has to consider; there may be other countries too, and there is the question of balancing the contribution made in proportion to the size of the country, and whether it is so great that it gives rise to particular concerns. However, if I may say so with respect, the clause would be improved if it said a little more about the particular point to which the OfS should direct its attention, so that it knows itself what it should be doing.

[Lord Willetts (Con)]

My Lords, in the light of that last comment, I can briefly intervene with reference to Amendment 65 in my name. I register my interests as a member of the board of UKRI and a director of Thames Holdings.

I have two questions for the Minister but they arise also from the important intervention of my noble friend Lord Johnson of Marylebone. First, we do indeed need some sense of proportionality; the figure of 1% of the total income of a registered provider was an attempt to get some sense of what constituted undue influence. It would be very helpful to have an update from the Minister on the Government’s view on that. Secondly—I am speaking very much in a personal capacity—this clause is really about research funding. Of course, my noble friend has made an important point about teaching income. In the legislation which he steered through this House, there was a rather clear distinction between teaching, which is a responsibility of the OfS, and research, which is a responsibility of UKRI. It is important that those two bodies work together.

It would also be helpful to hear from the Minister how she envisages the OfS scrutinising what in this clause is predominantly research funding, for which the OfS has historically and legally not had any responsibility, but for which a different government body, on whose board I sit, currently has the main responsibility.

[Baroness Smith of Newnham (LD)]

My Lords, I rise in part to move Amendment 66 in the name of my noble friend Lord Wallace of Saltaire. Before I do that, I would like to speak to the amendments tabled by the noble Lord, Lord Johnson of Marylebone, and the noble Lord, Lord Willetts.

My immediate reaction on reading Amendment 63 and the term “overly reliant” was to ask, how defined? In many ways, Amendment 65 in the name of the noble Lord, Lord Willetts, shows that there is a way of defining overly reliant; 1% might be the right amount or might not, but it begins to give us a way of saying what over-reliance means. Therefore, I believe Amendment 65 to be a helpful addition.

Amendment 64 is interesting but, as the noble Lord, Lord Willetts, pointed out, we need to be careful regarding whether we are talking about research funding or wider university finance. The noble Lord, Lord Grabiner, is obviously correct that the home undergraduate fee does not cover tuition adequately; international student fees are deemed by many higher education institutions to be extremely important. However, an important question raised by the noble and learned Lord, Lord Hope of Craighead, is: what is over-reliance? If 60% of a British university’s students came from one country and then its economy completely collapsed, that would leave the university more than decimated—potentially, minus 60% of its fee income if that market disappeared. So it is in many ways in the interests of higher education institutions to make sure they are not overly reliant on a single source of student fees.

Quite separate from that, in the case of freedom of speech the question then becomes: to what extent do we believe there is an issue about where the money is coming from? If we are talking about Confucius Institutes, for example, that is money coming directly into universities, and there might be questions about the conditions. If we are talking about undergraduate or graduate students coming to study in the UK, the questions might be slightly different. Wealthy parents from whichever country will not necessarily say, “We will send our offspring to the United Kingdom to be educated only if freedom of speech is in some way curtailed or if certain norms and values are articulated.” That is probably not what we will hear from China.

If there is somehow government intervention from countries paying fees for their brightest and best to come to the UK, maybe it is something to be explored, but I am not sure that this Bill is the right place to be doing that. There is a whole set of higher education funding issues that we might need to think about, but that then becomes very specific in the Bill, and I am not wholly persuaded that fee income will be a major factor in curtailing freedom of speech.

That also underlies Amendment 66 in the name of my noble friend Lord Wallace, which is a probing amendment to ask to what extent His Majesty’s Government think there is a problem with regard to the funding of student unions. Is money coming directly from the Governments of other countries? If so, are they constraining what student unions are able to do? The real question is: is this a problem that needs to be resolved, or is it simply the Government thinking they might like to have another regulator exploring a bit more what student unions are doing? In that case, perhaps we should not support that particular part of Clause 9.

Higher Education (Freedom of Speech) Bill

Lord Willetts Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Lord Moylan (Con)]

Now that was a heckle of some value.

To conclude, it might be nice if the Front Bench, which has shown itself capable of endorsing enthusiastically the very laudable Amendment 6, tabled by the Labour Front Bench, could reciprocate by accepting one from its supportive Back-Benchers. If so, I strongly recommend Amendment 21 in my name.

[Lord Willetts (Con)]

My Lords, I rise to speak to Amendment 22 in my name and those of other Members of this House. I begin by thanking Ministers for their engagement with the tricky issues around Clause 4 and, as we have heard, the wide range of views in this House about it.

I make it clear that I completely back the principle of the Bill, which is the need for the right to freedom of speech to be backed with clearer and more enforceable rights than we currently enjoy. However, another point that the Minister has made on several occasions is that we should not overlook the protections that employment law already provides. It looks as though some of the most egregious cases, such as the terrible treatment of Professor Kathleen Stock, are in clear breach of employment law. It is quite a good principle that we should start by properly using the legal protections and rights that already exist.

As we have heard, there is also the framework of criminal law. Nevertheless, there really are problems in our universities, and most of us in this House are not denying it. I have been shouted down at universities, but I have also had a different type of experience, which reminds us of the good features of universities, which we should not forget. I remember a group of protesters with a megaphone denouncing my proposals on student fees. I went up to them to try to persuade them and they could not hear what I was saying, so they lent me their megaphone. I made my point and handed it back to them, and they got on with their megaphone, and we ended up—in the unpromising circumstances of a student demo outside a university—having a proper engagement and disagreement. We should remember that that still happens in our universities up and down the country.

Nevertheless, the framework of employment law and criminal law is not enough and the Government are, in this legislation, bringing forward a very significant further power for the regulator that already exists, the Office for Students, but giving it a clear responsibility in this area. One thing that surprises me about the sceptics—I have had debates with very concerned academics who back the Bill, and we have just heard from my noble friend Lord Moylan—is that they talk about a vague complaints procedure going on interminably, as if this is some kind of feeble option and we really need litigation as the guts of the Bill. In reality, the Office for Students, created in legislation steered through by my noble friend Lord Johnson of Marylebone, is a very powerful body and its powers are being increased in this legislation. It has considerable understanding of and expertise in universities and will gain extra powers in this legislation.

One of the arguments we heard in Committee about the need for litigation was that we need to have financial redress. It is clear that, within the Bill, there are powers for the OfS to require financial redress and to fine universities. These are very substantial provisions. What is very unusual about the Bill, unlike many other circumstances and many other policy debates I have been involved in over the years, is that the Government are not just empowering a regulator, they are, in parallel, adding a new proposal for a right of tort and civil litigation alongside. That is a very odd way of trying to tackle the problem. The Government should have confidence in the powers of their own regulator, reinforced by the proper enforcement of rights under employment law.

The Minister, whose engagement in this I respect and appreciate, said that we should not worry because, with the amendments he is bringing forward, civil litigation would be a backstop. I do not understand what a backstop is in these circumstances. We all know that a student union—and I worry about student unions at least as much as about university administrations—if one of these controversies flares up, will receive a lawyer’s letter in the first 24 hours. The lawyers will not say, “Let’s wait and see how the OfS proceeds, because we are the backstop”; the legal letters will arrive. When I think, therefore, about the real test of whether there should be this provision for tort, the real test that, surely, all of us in this House can share is: will the net effect of this provision be to increase and enhance freedom of speech in our universities, or will the effect of this power of tort be a further chilling, a further reduction in freedom of speech in our universities?

I think of people who try to organise events painstakingly to promote freedom of speech in their university. They try to find a neutral chair who will chair two highly controversial and disputing views. When one person turns up, they try to arrange for there to be an alternative. They try to find the right place for these meetings and sometimes they are already traduced in the media as if they are somehow part of the problem, when they are actually trying, very decently, to be part of the solution. Will the prospect of a legal challenge to what they are doing give them the confidence to carry on organising those events and promoting freedom of speech in our universities? I fear it will have the opposite effect. I think of a 19 year-old who sets up a student society in his or her university, thinking, “Will I find myself facing a legal letter if I get bogged down in trying to arrange an event?”

We already face a very worrying trend of a decline in the number of external speakers going to universities because people think it is just more trouble, too risky and too dangerous. The risk with these provisions is that they make that trend worse: more people will do exactly what we all fear. They shut up, they keep their heads down, they do not invite controversial speakers, they do not invite any speakers at all; they lie low and stay out of trouble. That would be terrible for freedom of speech in our universities and I fear that is the risk if people expect to face legal challenge for events they organise.

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Moved by

[Lord Willetts]

22: Clause 4, leave out Clause 4

[Lord Willetts (Con)]

I would like to seek the opinion of the House on this amendment. It has been a really valuable and important debate, and I recognise the enormous contribution the Minister has made to our deliberations. However, the OfS is a very powerful mechanism. It is not some patsy that is in the pockets of vice-chancellors; it is a very effective regulatory mechanism which is further strengthened in this Bill.

The people I most worry about are those young people wrestling with arranging events at their universities. It looks as if freedom of speech is some absolute and complete right—who could possibly challenge any freedom of speech? However, they are wrestling with practical questions. What if you discover that the invitation is for the same week as exam week, and a controversial speaker is coming just as the university is holding exams? What if the fundamentalist speaker, as part of his right to speak, is going to insist on gender segregation of the people attending the event? How do you judge those types of difficult questions?

It is hard enough at the moment for the young people who do it, some of whom, I suspect, may end up as Members of this House or another place. They do not need the threat of litigation hanging over them when they are reaching those decisions, so I beg to move my amendment.

Higher Education (Freedom of Speech) Bill

Lord Willetts Excerpts

Consideration of Commons amendments
Tuesday 21st March 2023 Lords Chamber

Moved by

[Lord Willetts]

At end insert “and do propose the following amendments to the words so restored to the Bill—

10B: Page 6, line 22, after “A1” insert “that causes the person to sustain loss”

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10E: Page 6, line 27, at end insert—
“(2) A person may bring proceedings under subsection (1) only if—
(a) the person has brought a complaint relating to the same subject matter as the proceedings under a relevant complaints scheme, and
(b) a decision has been made under that scheme as to the extent to which the complaint was justified.
(3) Each of the following is a “relevant complaints scheme”—
(a) the scheme provided by virtue of Schedule 6A (the free speech complaints scheme), and
(b) the scheme for the review of qualifying complaints (within the meaning of section 12 of the Higher Education Act 2004) that is provided by the designated operator (within the meaning of section 13(5)(b) of that Act).””

[Lord Willetts (Con)]

My Lords, I declare my interest as a visiting professor at King’s College London and an honorary fellow of Nuffield College, Oxford.

I warmly welcome the Minister’s assurances about how this legislation will work. I particularly welcome his commitment, and that of other Members of this House, to support the amendments in my name. These amendments bear a striking resemblance to amendments the Minister himself tabled, which we debated on 7 December. It is evidence of his common sense and wisdom that he is supporting them now, as he did then.

I assure him that across the House, after many hours of debating this important legislation, there is shared agreement that there is a problem. Nobody is denying that there are egregious and appalling examples in which universities and students unions are not the safe spaces for free speech that we wish them to be. Sometimes people believe that they should somehow be a safe space from free speech, which is not what universities stand for.

There is also very strong support across the House for the Office for Students as a tough and effective regulator. I pay tribute particularly to my noble friend Lord Johnson of Marylebone, who early on intervened to make clear that it was the body that should have the crucial role in this case.

The issue has been about tort. As we were told, this is not the first time that Clause 4 has been the most controversial feature of a piece of legislation. Many of us had a real concern that the threat of civil litigation could have a chilling effect, threatening the activities of student unions in particular. That is why your Lordships’ House voted to remove Clause 4 from the Bill. The other place has reinstated it and we have to understand and respect that vote, but these amendments are a sensible compromise to clarify the circumstances in which the tort provision would apply. The litigant has to have sustained a loss and have exhausted other complaints procedures, notably the enhanced powers that this legislation gives to the Office for Students. I am very pleased that the Government have reiterated their support for those principles and recognised that this is how this tort provision should operate—very much as a last resort.

What these amendments would do is ensure that Clause 4 is very sensibly targeted. They would make it workable. In particular, they would remove the risk, which many of us on all sides of this House are concerned about, that a university, or even more so a student union, could find itself on day one receiving an investigation letter from the OfS and on day two receiving a lawyer’s letter threatening it with litigation. We thought that that was not a sensible or reasonable way to proceed, and indeed would obstruct the effective discharge of a regulatory function by the OfS.

I welcome the assurances that the Minister has given. The debate we have had on this legislation has been an excellent example of the role of your Lordships’ House as a revising Chamber. It has also reminded us of the shared values we have: a commitment to freedom of speech and diversity of opinion.

[Lord Grabiner (CB)]

My Lords, I confess to be rather miffed by the Government’s acceptance of the amendment of the noble Lord, Lord Willetts, because it deprives me of the ability to make the fire and brimstone remarks that I had planned to make. However, I certainly welcome the Government’s reaction to the excellent amendments of the noble Lord, Lord Willetts, and can as a result be quite brief.

On Clause 4, we have really come full circle and are back where we started. As has been pointed out, in our debates Clause 4 was subjected to many serious criticisms by noble Lords across the House, and I will not repeat them. In the face of those criticisms, at Report in this House the Government accepted a clarifying amendment from the noble and learned Lord, Lord Etherton, which incorporated a reference to damages in Clause 4. In a further attempt to meet these criticisms, the Government brought forward their own amendment, as the Minister has pointed out, which gave priority to the regulatory regime and deferred the ability of a private claimant to deploy Clause 4, pending those regulatory procedures being exhausted.

I respectfully urge your Lordships to support the amendments put forward by the noble Lord, Lord Willetts. As to those amendments, the loss point would clarify and emphasise the need for proof of damage as a condition for making a Clause 4 claim. It would deter some frivolous claims, and to that extent would be a valuable amendment.

The priority point in the amendment of the noble Lord, Lord Willetts, is perhaps rather more important. The OfS will have extensive regulatory powers for dealing with an offending student union. Clause 7 would amend the Higher Education and Research Act 2017, whereby the OfS would be obliged to monitor student unions’ performance of their new duties. Importantly, the OfS would also be empowered to impose a financial penalty on a student union and seek an injunction in court. Common sense suggests that the Bill would be significantly improved if priority were given to the regulator and claimants were not able to invoke the private law cause of action until the regulatory function had been performed and completed. This was the Government’s view just a few weeks ago, and I am absolutely delighted that it still is their view—at least in this House.

If I may, I want to briefly draw attention to the email from Ministers which arrived while we were in the Chamber but before this debate began. I will reference the end of the sixth paragraph, which is a point to which the noble Lord adverted when he opened this debate just a few minutes ago. The letter says: “Those affected by the Bill are at the forefront of our minds and it is only right that we reflect that the Government may wish to explore further opportunities to achieve consensus when it returns to the Commons”. The only point I want to make about that is this. The implication of what is said there, and of what the Minister said at the Dispatch Box, is that there may be amendments in the other place that will take away the amendment that I hope we are now going to support, possibly without even a Division. My concern is this: I believe that that would not be a sensible thing for the other place to do.

I would urge one point: if there are felt concerns in the other place that are not satisfied by these amendments, a more appropriate route to be undertaken would be directed towards the regulators, rather than to diminish the quality of the amendment that I hope we are about to make. The regulators are very powerful—they have strong powers in the statute and in this Bill. In my view, the correct party to be concerned with in dealing with the kinds of concerns that trouble everybody in the story, and the proper starting position, is the regulator. That is what the regulator is there for. It would not be right, in my view, to undermine the quality of the amendments that have been put forward in respect of this provision without first facing the possibility that the regulator ought actually, if I may be blunt about it, to pull its finger out.

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[Lord Willetts (Con)]

My Lords, I want briefly to reflect on the important points that have been made. First, I think there is widespread recognition that there is a problem. Of course I understand the problem; I have been on the receiving end of exactly the kind of threats to freedom of speech that this law is trying to tackle. I have seen student unions protect my right to speak and I have seen student unions collapse under pressure to not allow me to speak. I have seen universities that have done their best to enable me to speak, even with shouting and jeering and protests outside, and I have seen universities cravenly collapse under pressure to not allow me to speak. I am absolutely aware of the issue, as I think Members across the House are. However, at no point when I faced these protests did it occur to me that the way to solve the problem was for me to have the right to sue somebody. That is the issue: what is the best way to deal with the problem?

I have to say that the path of the past decades has been to increase the power of regulation. The noble Baroness, Lady Fox, made a passionate intervention that began with a description of the bureaucracy involved in trying to prove that she was not a hatemonger. I am speculating, but I think I know where that bureaucracy comes from: it is the Prevent initiative. I remember my conversations with officials in the Home Office who said to me, “There are extremists being invited to speak at universities and we need to have a process to make sure extremists who will stir up hatred are not allowed to speak”. I remember meetings with Home Office Ministers where, if I may say so, it is possible that I made some of the points that the noble Baroness made. But the pressure was, “We cannot allow an unregulated approach; we need to know who these speakers are so we can check if they’re potentially going to infringe the law”. That, I suspect, is the origin of the bureaucracy. That is where it started, over a decade ago.

The noble Baroness recently had the shocking experience of not being able to speak at Royal Holloway college. But I do think that here she does this legislation a disservice. Faced with the problems she encountered, is it really the case and is she really confident that suing the student union, which is where the legal process would have started—and, clearly, she had some sympathy for the student union and the pressure it was under—is the way to resolve the problem?

The Bill envisages—and I have to say that Ministers have made it clear throughout that this is the way they see the Bill working—that, if the noble Baroness encounters a problem such as that, her first port of call is the Office for Students. I heard in several interventions noble Lords say, “It’s a patsy”, “It’s producer capture”, “It’s the university friends”. I would invite noble Lords on all sides of the House to read, for example, the recent letter of complaint from universities about the OfS, saying precisely that it was too aggressive, that it was not working with them and that it was a heavy-handed regulator. The idea that the OfS is some kind of patsy that has been put up to put off any intervention is a complete misreading of the powers that it already has under legislation steered through Parliament by my noble friend Lord Johnson of Marylebone and that are now enhanced by this legislation.

If the powers prove still to be inadequate—if someone still has a grievance even after the Office for Students and the OIA have investigated a complaint—at that point they can go to law; that is what these amendments, originally proposed by the Government last year and now proposed and brought before the House by me and others today, ensure. That is not some feeble abandonment of a commitment to freedom of speech; it is the right way to proceed.

This legislation is a powerful further intervention; it makes the legal framework absolutely clear. It means that any Member of this House, or any citizen who faces a challenge to their right to speak at a university, will know there is someone at the OfS who has an explicit legal responsibility for protecting their rights to freedom of speech. That is a very powerful provision, rightly reinforced, but only if the regulator fails by a power of tort as well. Therefore, I hope the House will support the amendments in my name and in the names of others in this House.

Motion A1 agreed.