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.

--- Later in debate ---

[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.

--- Later in debate ---

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.

--- Later in debate ---

[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?