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.