“If liberty means anything at all it means the right to tell people what they do not want to hear.”
George Orwell’s words from 1945 remain just as apposite today. I hope and believe that we are all in agreement that freedom of speech—the right to voice one’s opinion without fear of repercussion—is vital to the proper functioning of a democratic society. This principle is surely no less important in a university setting. Free speech is the lifeblood of a university, allowing students and teachers to explore a spectrum of views, engage in robust debate and pursue their quest for knowledge.
The phrase “world class” is sometimes overused, but our higher education is world class, and it would not be wrong to equate much of its success to the value we place on free speech in this country. You need only look to some of our most influential historical figures to understand how free speech can influence the course of history. Let us not forget that the views of trailblazers such as Emmeline Pankhurst and Mary Wollstonecraft were first dismissed and ridiculed, but their willingness to stand up and argue for what they believed in ultimately secured women the right to vote.
Both students and academics arrive at our universities expecting to be challenged. Yet, we know that fear of censure is increasing and this is having a chilling effect on discourse and debate. There is a growing body of evidence to bear this out: the proportion of students who believe that universities are becoming less tolerant of a wide range of viewpoints has risen to 38%; this figure stood at 24% in 2016. Here, I thank my noble friend Lord Johnson who, as Universities Minister, was one of the first to raise concerns on this important matter, including in his landmark speech at the Limmud conference in December 2017.
I firmly believe that we must address these issues and that the Bill before us is the best way to do so. By way of an example—which happens to be the freshest in my mind—the experience of my right honourable friend the Secretary of State for Education at the University of Warwick highlights that, even if we do not agree with views expressed by others, it does not mean that we have the right to silence them. A student firmly interrogated the Secretary of State’s statement on trans rights. Their views differed greatly but, as the Secretary of State said, the student’s
“right to free speech is vital too”.
Areas of disagreement do not always have to be met with hostility; there is scope to agreeably disagree. I am looking forward to hearing the views of noble Lords during today’s debate, and I thank those who have come to contribute to it.
The Bill will protect lawful freedom of speech and academic freedom on campus. The measures will strengthen existing legislation and address gaps in existing law. As I shall explain, these are very much active measures, not just a means to address a problem once a breach of the duties has taken place. New duties will be placed on higher education providers and constituent colleges to take “reasonably practicable” steps to secure freedom of speech within the law for staff, members, students and visiting speakers. They will be duty bound to pay particular attention to the importance of free speech when taking these steps. Importantly, these duties also, for the first time, clearly extend to “academic freedom”.
In a new measure, the Bill will require providers and constituent colleges to promote the importance of freedom of speech and academic freedom. The Office for Students will be bound by a similar duty. Furthermore, higher education providers and their constituent colleges must develop and publish a code of practice, which must include an overarching statement of the values and procedures they will uphold, and which they must bring to the attention of their students at least once a year.
Student unions are at the heart of many students’ university experience; they offer a distinct space for students to come together and engage in areas particularly close to their heart. This legislation, therefore, contains duties that apply specifically to student unions at approved fee cap providers, which is the majority of registered higher education providers. Like higher education providers and constituent colleges, under this legislation they must take steps to secure lawful freedom of speech. Similarly, they must publish their own code of practice.
At present, there are no effective means of enforcing the current law if higher education providers are in breach of it. This may explain some individuals’ hesitancy to express their views. To address this, the Bill creates a new statutory tort for breach of specified freedom of speech duties by providers, constituent colleges and student unions. This will enable individuals to seek legal redress for the loss they have suffered as a result of a breach.
The higher education sector will play a leading role in delivering the ambitions of this legislation, but the regulator also has an important part to play. The Bill gives new powers to the Office for Students, which will identify best practice and provide guidance on how to secure and promote free speech. The Office for Students will be required to impose mandatory registration conditions on providers relating to freedom of speech and academic freedom, as well as monitoring the compliance of student unions with their freedom of speech duties. As with the lack of an enforcement mechanism, there is currently no specific route for all those who might be affected to lodge complaints relating to freedom of speech. The Bill creates a requirement for the Office for Students to provide a complaints scheme that will provide a right of redress for students, members, staff and visiting speakers. This scheme will be overseen by the Director for Freedom of Speech and Academic Freedom, a new position on the Office for Students board. These measures will enhance the strengthened freedom of speech duties and encourage compliance.
On Report in the other place, my colleagues introduced several minor and clarificatory amendments. Two substantial amendments were also tabled. The first creates a duty for providers, constituent colleges and student unions not to pass on security costs associated with free speech events to the organisers, unless there are exceptional circumstances. The second was an amendment on “overseas funding”: this creates a duty for the Office for Students to monitor overseas funding received by higher education providers, their constituent institutions and student unions. This will enable them to assess the extent to which the funding presents a risk to freedom of speech and academic freedom.
I finish by emphasising that the Bill is not about allowing unlawful speech. The right to freedom of speech is not an absolute right and it does not include the right to harass others or incite them to violence or terrorism. This is definitely not a licence to break the law. The Bill is about encouraging varied and thoughtful debate, so that future generations develop the ability to think critically, challenge extreme narratives and put forward new—and sometimes controversial—ideas. I firmly believe that these are essential skills in a modern, forward-facing society. I look forward to the debate ahead of us today and beg to move.
My Lords, I thank all noble Lords who will speak in today’s debate and all the organisations and the Library for their excellent briefing on the Bill.
I also thank the Minister for presenting the Bill with his usual clarity and elegance, expressing many aspirations that many of us would agree with about free speech. Having worked with the noble Earl for many years, both as a Minister and in opposition, revising and improving many pieces of legislation, I have come to admire his intellectual acumen and political nous. I fear that he will have to bring both to bear in great measure to justify and succeed in getting what is regarded by many as a shoddy piece of legislation—at best, unnecessary and, at worst, divisive—through your Lordships’ House in its present form.
Labour, unlike the Conservatives, over many years, has always championed free speech. It was a Labour Government who introduced a law guaranteeing freedom of expression. It seems to us on these Benches that, as higher education and our students move out of the difficult and sometimes traumatic time that Covid brought, the Government should be addressing the immediate issues of rent, getting a job and the rise of mental health conditions among our young people. Three out of every four students are currently worried about managing financially, one in four has less than £50 a month to live on after rent and bills, and 5% of students are using food banks to get by. Surely these matters are the priority, rather than focusing on a row largely manufactured in Whitehall based, at best, on flimsy evidence. A review of 10,000 events revealed that only six were cancelled and four of those because of faulty paperwork.
The Commons Minister, Michelle Donelan was asked what evidence lies behind her statements on ConservativeHome that there is
“a cluster of institutions that are in the grip of a close-minded, intolerant ideology—and at the centre of this cluster lie our universities.”
She said that she believed it to be true. This seems a flimsy base for legislation from a Secretary of State who says that he believes in an evidence-based approach. Can the noble Earl please tell the House to which “institutions” his honourable friend was referring? As my honourable friend Kate Green MP said at Second Reading over a year ago,
“it is an evidence-free zone when it comes to underpinning the concerns that he says it is addressing.”—[Official Report, Commons, 12/7/21; col. 53.]
The lack of an evidence base is one challenge the noble Earl will have to face as the Bill progresses through your Lordships’ House, but there are others. There is an understandable concern that the Bill may undermine existing protections against discrimination. That it introduces a new mechanism that some believe may allow hate-filled individuals to sue a university if they feel that their opinion has not been adequately heard may allow extremists, racists and Holocaust deniers to have a voice and a much-craved platform on our campuses. We will need to test these things during the passage of the Bill.
Additionally, we need to ask how the resources to fight those challenges will be found. We will test the effectiveness of the new clauses added by the Government. From these Benches, we will seek to amend the Bill to require an independent appointments process for, and prevent party-political donations from, the new, to-be-appointed director of free speech. We will seek to broaden the definition of academic freedom to include, for example, criticism of institutions, conducting research and joining a union. We will seek to add a sunset clause, so the legislation expires after three years unless an extension is approved through an affirmative SI. We will seek to require the Office for Students to consider competing freedoms when investigating free speech complaints and seek to prohibit the use of non- disclosure agreements by universities in relation to sexual harassment.
I want to raise with the noble Earl the appointment of the director of free speech. This job was advertised on 13 June or thereabouts, which is, of course, the date that the Bill completed its passage through the Commons but had yet to reach your Lordships’ House. The closing date for applications is 13 July—so be quick if you want to apply for this almost £100,000-a-year job. Can the noble Earl address the question of pre-emption? When will the appointment be made if the closing date is 13 July? Will it before the position has been agreed by Parliament? What parliamentary scrutiny will the appointment receive?
Looking at the job description—which I recommend noble Lords to read—the position seems to require no legal background. I hold no brief to create work for lawyers, but surely if we are to have a director of free speech, a person tasked with the job of settling contentious cases, it must be in all our interests for that person to have a broad understanding of the sector, the legal framework around free speech to which I have referred and the sector’s regulatory framework, but these elements are not essential in the job description.
In conclusion, the issue here is evidence, and that is why these Benches have deep reservations about the unintended consequences of this Bill. Its top-down, one-size-fits-all approach demonstrates the weakness at the heart of the Government and their misplaced lack of trust in our academic community. I have great hope that the many noble and learned Lords and the phalanx of chancellors, vice-chancellors and heads of colleges who inhabit your Lordships’ House will cast their eyes on the Bill and between us we might knock it into some sensible shape. At the least we can do no harm, and if we are very successful, we may enhance free speech in higher education. I look forward to the debates to come and the next stage of the Bill.
My Lords, this Bill is unnecessary and un-Conservative. It addresses a problem that is far less severe than right-wing think tanks have claimed, and for which the Government’s White Paper admitted that there is very little supporting evidence. Ministers who preach deregulation and shrinking of the role of government are introducing a Bill to impose burdensome and costly new regulations on British universities—the sort of thing that authoritarian Governments in Hungary and Russia impose to limit critical debate and cripple civil society. This is not what a Government who claim to be leading the democratic world against authoritarian regimes should be doing.
It is also an orphan Bill. Those who pushed for it in government—Munira Mirza, the champion of culture wars in No. 10, and Gavin Williamson and his special advisers in the DfE—have now left. Perhaps for that reason, the Bill loitered in the Commons through the last Session, giving hope to some of us that reasonable voices in government had thought it wise to let it die. But here it is, staggering on because wiser counsels within the Conservative Party have not prevailed, pushed onwards by the American and Australian-trained campaigners in No. 10 who think that fighting culture wars appeals to the Conservative base.
Our Prime Minister has been fond of the boast that the UK is “a soft power superpower”. The Minister will recall that the integrated review of foreign and security policy devoted an entire chapter to the importance of soft power. It listed as its most valued institutional components the BBC, the British Council, the quality and financial scale of our overseas development programme, the reputation of our universities, and the strength of our cultural sector. Since then, the Government have cut the aid budget, sidelined the British Council and repeatedly attacked and financially weakened the BBC. Now this Bill threatens to weaken the global standing and reputation of our universities by extending government oversight of academic debate, appointments and promotions.
There is a problem of toleration of dissent by the current student generation in our universities. The Higher Education Policy Institute has just published a survey which indicates that students have become more protective of what they see as vulnerable minorities, less willing to accept that freedom of speech necessarily includes the right to offend and less willing to tolerate university teachers whose views clash sharply with their own. We have seen a small but painful number of instances in which universities have failed to defend their staff in such circumstances, most sharply the University of Sussex in the case of Professor Stock.
University leadership needs to underline the importance of tolerance of different views among staff and students, but in a free society that role should be played by university leaders and not be imposed by government. In any case, how severe and widespread a problem is this for the over 100 universities? Is the challenge we face worse than in in previous cycles of student activism, which universities have come through without requiring heavy-handed government intervention?
Gavin Williamson in his preface to last year’s White Paper specifically deplored attempts to block Ministers from speaking at and ambassadors from visiting universities. The very first lecture I gave as a newly appointed lecturer at Manchester University in January 1968 was disrupted by a protest at the suspension of a student for assaulting an Education Minister the night before. I went to a ceremony at King’s College London some weeks ago to unveil a portrait of one of the students who had disrupted my lecture, who has since become an adviser to Governments and a globally recognised academic.
Some noble Lords may be old enough to remember the Stop the Seventy Tour and the wider student campaign against apartheid South Africa. My wife can still remember the song she and others sang as they blocked the South African ambassador from speaking at Oxford University. I have just read a memoir of the Stop the Seventy Tour which confirms that at least two of its most activist members have since become Members of this House.
Last year, I spoke to a number of vice-chancellors about this Bill and the issues it raises. One retired VC reminded me that he had struggled to maintain order on his campus in the face of deliberately provocative speakers invited by the then chairman of his student Conservative Association, one John Bercow. A current vice-chancellor told me that the biggest problem of this sort he faces is keeping the peace between his Chinese and Hong Kong students.
There is nothing new about student protest or arguments about the limits of freedom of speech in universities—and I have been an academic for 40 or more years. The question is whether the imposition of a heavy external burden of intrusive regulation, with the introduction of a new tort that will transfer large sums of money from university funds to lawyers through litigation, is a proportionate response to the limited number of unacceptable instances we have seen, above all related to trans rights. I suggest that the proposals are disproportionate. This extension of state interference over autonomous institutions is authoritarian and not Conservative.
The Bill covers not only students and student unions but also staff, visiting speakers and the loosely defined “members” of higher education providers. I understand that, as a retired professor, I may count as a “member” of the LSE, with standing to sue or be sued under the Bill—I shall have to check with the director. The provision that permits discontented staff to sue if they consider
“the likelihood of their securing promotion or different jobs at the provider being reduced”
opens a huge can of worms. I declare an interest: I was once passed over for promotion at the department of government at Manchester on the grounds that I was “too interested in politics”.
The anti-intellectual right in the United States, with its claims that universities are hotbeds of liberalism actively discriminating against honest conservative thinkers, has close links with right-wing bodies in the UK. Policy Exchange in London has claimed on its website to have provided the foundations for the Bill, with almost all of its recommendations in two reports being accepted. I regret that the noble Lord, Lord Godson, is not here today to take credit for that achievement. He might also wish to tell us how much of the significant American funding for Policy Exchange has come from those right-wing foundations that have fuelled Trumpian Republicanism. Think tanks, like universities, should be transparent about their foreign funding.
I was struck when I read the Policy Exchange papers that they had almost as many references to American examples as British, including some from hard-right foundations. They included the claim that the staff of British universities are overwhelmingly left-wing: 80% apparently failed to vote Conservative or UKIP in the last two general elections. Given that over 20% of staff in most universities are not British citizens, and that a large proportion of that staff are scientists and medics and not particularly interested in politics, I find this statistic completely unbelievable.
I am concerned, however, about the undertow of anti-intellectual, anti-rational argument from right-wing critics about Britain’s alleged liberal elite and its allegedly malign hold on our cultural and educational institutions. The Times gave Douglas Murray two pages last Saturday to develop this theme, in which he stated that it’s now virtually impossible for a climate change sceptic to gain appointment as a university chancellor or museum director. If challenging the allegedly oppressive liberal cultural elite means insisting on climate change sceptics being appointed to senior academic positions regardless of their attitudes to evidence and reasoned debate, then our universities and their reputation are, indeed, at risk.
The shadow of Brexit hangs over this, of course, as over so many other aspects of British politics and public debate. The claims that appointments and promotions are biased against conservatives comes from leading members of Historians for Britain and a handful of political scientists. There is no evidence that I am aware of of structural bias against conservative academics; indeed, the founder of UKIP was a friend of mine and a colleague at the LSE. Opening appointment and promotion procedures to challenges over alleged political bias would be a serious incursion into the autonomy of our universities and a feast for lawyers in civil cases.
This is not the first time that structural bias in universities has been alleged. When Margaret Thatcher became Prime Minister, she was determined to abolish the Social Science Research Council. She believed, as a hard scientist, that there was no such thing as social science; that what was taught in universities was intrinsically socialist. She asked Lord Rothschild to report. He, thankfully, responded that careful social and economic research was essential to good government, and that public money should continue to underwrite it. She nevertheless insisted on removing the word “science” from what has since then been labelled the Economic and Social Research Council.
Allegations about left-wing bias in universities focus on social science and humanities, and above all on historians, but history faculties have always argued among themselves, often bitterly. The political balance among academic historians in Britain has been adversely affected by the choice too many of our self-declared patriotic historians have taken to emigrate and take better-paid posts in the United States. Different disciplines have different tendencies. One vice-chancellor told me that his university has a structurally left-wing sociology department and a structurally right-wing economics department: it goes, he said, with the disciplines. Those who want to use this Bill as a lever to promote more solidly conservative views in our higher education institutions should reflect that Britain’s most clearly conservative institution, after the University of Buckingham, is Christ Church College, Oxford: not the greatest example of toleration of dissent and diversity.
Others will touch on the tangle of vexatious lawsuits that this Bill will impose on universities. I briefly mention the comment of another vice-chancellor that it will be completely impossible, in the current heated political atmosphere, to find a candidate for the post of free speech champion who will be acceptable to all sides. Nor can we have confidence in Ofcom assuming this role, when the noble Lord, Lord Wharton, as chair, associated himself with Viktor Orbán and the authoritarian right at a recent Budapest conference. I speak with particular feeling on this as a former visiting professor at the Central European University and a member of its senate in Budapest in its early years, when Viktor Orbán still called himself a liberal.
At a time when trust in this Government is at an all-time low, when suspicion of No.10’s political appointments is high, when the contamination of the Conservative Party by American Republicanism should concern all decent Conservatives, we will have to do our best, as the revising Chamber, to mitigate the damage this Bill could do to the global reputation and standing of our universities.
My Lords, this is, I think, a well-meaning Bill, but I question its necessity. I imagine no one here doubts that free speech should be protected, given it is one of the mainstays of our democratic settlement. The issue is by what means, and this is crucial because laws once on the statute book can be reinterpreted and misinterpreted. Furthermore, laws alone do not guarantee a more gentle and humane society—for that, we need a change in culture and behaviour.
Although this is clearly not the best time to uphold American constitutional rights, I have often envied American first amendment rights. The UK has never had such a codified protection of freedom of speech and assembly, but this protection in the UK is implicit in many of the laws we do have, and has existed for centuries as an almost definitive feature of British intellectual discourse.
The US Supreme Court has, in many courageous landmark decisions over the last few decades, made a clear distinction between two kinds of speech: advocacy and incitement. It has set out two conditions that must be satisfied to justify a suspension of first amendment rights. First, the words must be directed to inciting or producing imminent lawless action. Secondly, the words must also be likely to incite or produce such action. In other words, there had to be, according to the Supreme Court, a clear temporal relationship between inciteful words and subsequent criminal action. At the same time, the court provided a three-part test for determining the legitimacy of any restrictions on free speech: any restriction must be provided by law; it must serve one of the legitimate purposes expressly set out in the text; and it must be necessary. Thus, the Supreme Court ruled that a black anti-war activist who threatened to shoot President Lyndon Johnson if he were to be forced to kill his black brothers was not intending to kill the President but to state his political opposition. Similarly, an opponent of the Vietnam war was justified in expressing sympathy and support for those unwilling to obey the military draft; the judge saying
“statements criticizing public policy and the implementation of it must be … protected”
to give freedom of expression the breathing space it needs.
It is an old and tested argument that the answer to hate or offensive words is more speech, to ensure that dissent remains within the political sphere and does not stray into criminal actions. This Bill recalls many issues that have given your Lordships’ House concern in the past: banning potentially noisy protests; tolerating dissent; hate speech; and now the freedom to express contentious views in the academic context.
There is an array of Bills that afford protection to free speech, as the very useful Library briefing has set out. These include the Education Act 1986 and the relatively recent establishment of the Office for Students, which requires all publicly funded education bodies to comply with public interest governance principles. However, the Government argue that these protections are spread among a number of statutes and, despite the well-publicised events in very recent years of no-platforming and campaigns against individual academics, the Office for Students has been reluctant to exercise its regulatory authority.
The current framework allows judicial review of a decision made by any educational body, which, in turn, permits only discretionary remedies and no scope for damages. The Government’s rationale is to bring all these laws together under a single banner and to strengthen monitoring and action.
Despite the many safeguards in our political system, the worry is that this spread of free speech rules and regulations may well itself have a chilling effect on free speech, while at the same time failing to eradicate vicious attacks. The law will permit a platform for those opposed to, say, gender terminology, and it may even prosecute those who attempt no-platforming. But the culture of intolerance will continue in other outlets, perhaps with even greater vigour.
It is useful to ask how far laws change the prevailing culture. The anti-smoking laws have certainly very successfully banished smoking in public areas; compulsory seatbelts have drastically cut fatal accidents. Will this Bill enable the academic sector to remain safe from attacks by those who hold contrary views? Will it eliminate “cancel culture”? Not in a hurry, I do not think. The self-righteous anti-lobby, or “woke culture”, is well entrenched in our social media and in actions against those who do not share its views. It requires rather a lot of courage for an individual, even though backed up by legislation, to face these kinds of onslaughts. The context of protest has led to self-censorship, possibly one of the most insidious kinds of censorship. Many academics would admit to modifying views and words in order to avoid attacks, and this is not conducive to intellectual exchange or opportunities to bring new ideas into the public arena. Darwin had a really tough time in the 19th century and JK Rowling is having a tough time today.
Then there is the question of necessity. I am informed by one of my grandsons that the Oxford Union has only ever cancelled three debates, none due to protest. Are the instances of interference in academic freedom numerous enough to justify the increase in monitoring and potential criminal charges in the Bill? Are the bodies mandated to bring formal complaints and action sufficiently distanced from the Government of the day? Will potential criminal sanctions contribute to the free intellectual discourse we all wish to see flourish? There are other loopholes in the legislation that could see the regulations abused and have the opposite effect with unintended consequences. Will this legislation have the desired effect in the absence of other legislation to limit online harms, and will it eliminate cancel culture?
Can a law adequately define contentious speech and views separately from the context in which they take place? Freedom of expression and its regulation depend on context; students at educational institutions are especially in need of protection because they are usually a captive audience addressed by teachers regarded as authoritative. The conundrum is that precisely because of these factors, students may also need to be protected from language that borders on incitement; for example, pro-Nazi or extreme religious views. The task of distinguishing between offensive talk and a call to action might be a very delicate one. So my inclination is towards non-interference by the state, and this Bill will need careful scrutiny to avoid undue regulation of what is a fundamental right.
My Lords, intense competition for students, jostling for promotion among lecturers, vigorous, often intense and sometimes rancorous debate, with dashes of sharp practice and occasional mob violence—not a preview of some future Office for Students report but a snapshot of the early academic career of Augustine of Hippo. One of his first publications was advice to lecturers and, significantly for this debate, he later asserted that “By force we can make no one believe.” I will make some general points about the Bill and then raise three more specific issues.
Timothy Garton Ash speaks of three “vetoes” that silence the ability of people to express themselves: shouting them down, the “heckler’s veto”; declaring what they say to be offensive, the “offensive veto”; and, in extreme cases, threatening to kill people, the “assassin’s veto”.
Sadly, it seems that we have seen each of these techniques in action within higher education, as some of the evidence submitted to the Bill Committee demonstrated. It may quite reasonably be argued that such incidents are very rare, and that existing legislation already provides sufficient means of tackling such threats to freedom of speech, and to academic freedom, or that such things have always occurred, but I am not so sure that all is well. It is also true, as the survey for the Higher Education Policy Institute found, as we have already heard, that students are increasingly prioritising safety, especially for minorities or vulnerable groups, over free speech. There seems to be a generational difference in what is regarded as legitimate free speech—free speech within the law.
Yet there is also evidence that a significant proportion of students report self-censoring their own views and convictions and are reluctant to voice them in public. Similarly, among some academic staff there was a reluctance to imperil one’s career, possible promotion, publication or application for research funding by expressing views that were perceived to lie outside the overall culture of the institution or department. Those willing to take a different line appear to be senior staff, who either did not seek promotion or a new role or who had already established their reputation.
Freedom of speech and, by extension, the right to challenge, provoke, disturb, upset and sometimes to offend, are matters which are worth protecting in law. But these imperatives derive their true value from how they sustain the fundamental purposes of higher education: seeking truth and developing wisdom. They are not ends in themselves, but the means by which we pursue the truth, which is to our common benefit. Christian faith is rooted in the person who testified to truth in the tribunals of power and who promised the means to discern truth—the spirit of truth so movingly invoked at Lord Judd’s thanksgiving service earlier today. This is a vision of open truth-seeking which the Church has, at its worst, sought to stifle in society, but at its best, has helped to embed in university life.
Truth will set you free. By definition, we are all invited to share in this liberative function, to seek the truth as a basis for our common life. Therefore, although we cannot legislate for civility, my hope is that the letter of this proposed law, which is to protect freedom of speech, might make room for the spirit of the law, which is to seek truth without diminishing or dehumanising others.
Indeed, this Bill alone will not accomplish its objectives or guard against potential harms through purely statutory or regulatory means. Alison Scott-Baumann’s work on free speech provides some deep wisdom on nurturing communities of inquiry through an “etiquette of argument”, as she calls it—a way of communicating over divisive issues without causing harm. We are having a go at developing similar principles of conversation in the Church of England at the moment, with some success. At the core of these principles is a fundamental understanding that the truth that we seek is written into our human dignity; therefore, one cannot be compromised without the other.
I turn to some points of detail. The House of Lords Library highlights continued concerns about the potential confusion between the responsibilities of individual institutions, the Office for Students and its new director of freedom of speech and academic freedom, and the Office of the Independent Adjudicator. While new Schedule 6A provides some helpful clarification, I would be grateful for further assurances from the Minister about the interaction between these various, potentially overlapping bodies.
I share concerns already expressed about the new statutory tort. While the Office for Students will be able to dismiss unmeritorious, vexatious and frivolous claims, there remains a real concern that this provision will lead to increased litigation, including through the small claims court, which universities will inevitably need to defend, incurring expense and time, even if the case is dismissed, as I understand it.
Finally, new Sections 3 and 4 in new Part A1 may be read as posing problems for the provision of premises and facilities that meet the religious and spiritual needs of a range of staff and students—a concern also raised in the written submission of the Free Church Federal Council of England and Wales. I am grateful for the assurances given in yesterday’s briefing that there is no intention to compromise dedicated faith premises. Nevertheless, I would welcome a discussion with the Minister, as requested by the Second Church Estates Commissioner in his letter to Minister for Higher and Further Education, to resolve the matter fully.
Augustine was of course right: “By force we can make no one believe”. But sometimes we need legitimately to use the force of law to restrain actions that adversely affect the rights and dignities of others and to protect the rights we have for free speech and freedom of expression. So, although the Bill needs clarification on a number of matters, it is a measure whose intentions I support. I hope to see how the Bill can be better shaped to serve those intentions.
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.
My Lords, it is a pleasure to follow the noble Lord. I look forward to the answer from the Minister about those complexities —my goodness. I begin by reminding the House of my interest in the register as principal of Somerville College, Oxford.
I start with a quotation often attributed to Voltaire: “I may not agree with what you have to say, but I will defend to the death your right to say it”. That, in essence, is the right to free speech. I consider that the free expression and exchange of views are fundamental to the academic, social and extracurricular experiences of being at university. Oxford University’s statement on freedom of speech says exactly that on the website and it is endorsed by the collegiate university as a whole.
I welcome the Government’s commitment to the protection of free and lawful speech and debate in higher education, but I do not believe that the Bill is either necessary or desirable. In seeking to fix something that is not truly broken, it could be seen as yet another spark to inflame the culture wars. As my noble friend said earlier, a recent review of 10,000 speaker events across universities found that only six had been cancelled, with four of those due to incorrect paperwork. I fear that the Bill will impose bureaucratic burdens on our precious universities, which are part of the questioning and accountability mechanisms our society needs and deserves.
Freedom of speech in universities already gets fulsome legal protection. The Human Rights Act requires universities to protect freedom of expression under Article 10 of the ECHR. Section 43 of the Education (No. 2) Act 1986 requires universities to
“take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”.
That is a great statement that seems to suffice.
I am concerned about politicisation of this issue. I suggest that such an important role as chair of the OfS requires the best person for the job, and I suggest that perhaps the person in office at the moment is popular with the Prime Minister. The responsibilities of the chair are immense, especially as the Bill provides for the Orwellian director of freedom of speech, who will have sweeping powers, act as judge, jury and executioner in free speech complaints and potentially monitor overseas funding of universities. The fact that the chair spoke via video link at the Conservative Political Action Conference in Budapest calls into question his judgment in relation to free speech. He said that he did not know that he was appearing on the same platform as a notorious far-right, anti-Semitic, racist journalist—a poor excuse. In his speech, he endorsed the recent victory of the Hungarian Prime Minister Viktor Orbán, whose Government have curbed freedom of expression and countless other human rights. The OfS said that the noble Lord, Lord Wharton, was not speaking in his capacity as chair of the OfS. Frankly, that is not good enough.
Today, I learned that Minister Donelan has written to all vice-chancellors suggesting that the Race Equality Charter is
“potentially … in tension with creating an environment that promotes and protects free speech”.
I am speechless. Can the Minister really defend such a suggestion? I am often asked whether wokeism is rife in our universities and specifically at Oxford. I suggest that it is not.
The Bill appears to require in statute that providers place greater relative importance on always securing free speech. It does not make any mention of the other legal duties that universities, student unions and constituent institutions need to abide by, despite the fact that these duties may potentially conflict with securing free speech in some cases, as the noble Lord suggested. Can the Minister say which duties have primacy?
The new statutory tort is far too open-ended. Safeguards against misuse are needed to ensure that this would be a genuine protection for staff, students and speakers. The Government make much of not involving judges in political questions, but I fear that this Bill could encourage frivolous litigation by provocateurs and draw the courts into very difficult political terrain.
The Bill’s current wording around the scope of the OfS’s free speech complaint scheme appears to allow for complainants to escalate their “free speech complaint” through multiple routes simultaneously. This is likely to lead to immense confusion. A situation of competing judgments could undermine faith in local disciplinary processes and in the procedures of the Office of the Independent Adjudicator and the OfS. At present, the OIA considers student complaints only once the local process has been completed. Does the Minister agree that a similar principle should apply in relation to the proposed framework for free speech-related complaints?
The Bill allows simultaneously for the imposition of sanctions by the OfS for breach of a registration condition and for the issuance of recommendations that higher education institutions, student unions and constituent institutions pay fines. Is it the intention that they could be hit by a number of simultaneous penalties? If so, that could be particularly damaging to student unions.
In relation to overseas reporting, the Bill imposes a general monitoring duty on the OfS that the regulator “must” request information pre-emptively from providers, regardless of whether it has reasonable grounds to suspect a risk to freedom of speech, and seemingly without limitation by the country and potentially exposed persons exemptions, despite the risk-based exemptions set out in subsections. Does the Minister agree that it would be sensible for the OfS to request information only where it has reasonable grounds to suspect a risk to freedom of speech and/or a provider being in breach of a freedom of speech duty owing to overseas funding, and that information in scope for any OfS reporting requests should be restricted to funding from certain countries or individuals?
This Bill will represent the first and only direct way in which the OfS regulates student unions. It spells out how the OfS will take enforcement action against student unions it considers to be, or to have been, in breach of the new free speech duties that will be incumbent upon them. Like colleagues from many other universities, I am concerned that the Bill provides only for a disproportionate punitive approach and fails to offer a gradated scheme of interventions short of a monetary penalty.
Benjamin Franklin said:
“Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech.”
It is my belief that our universities are already proud bastions of freedom of thought and freedom of speech.
My Lords, I declare interests, first as the first holder of the Office of the Independent Adjudicator for Higher Education, dealing with student complaints, and secondly as former principal of St Anne’s College, Oxford, where the only time I ever banned speech was a session that was planned on how to practise safe male sadomasochism. I have no regrets about having banned that.
What an indictment of our universities it is that we should need to return to this topic again. I have spoken about it many times in this House.
Academics have the right to say and debate controversial and provocative things subject only to the laws that prohibit and criminalise certain topics, of which there are surprisingly many, ranging from the prevention of terrorism to defamation and racial discrimination. Universities are not and never have been at liberty to limit freedom of speech beyond the law, which is why it is so shameful to see professors hounded out for, for example, their views on gender. My views in a nutshell are that it is a problem, but that this Bill is not the right way to tackle it.
Policy Exchange, on whose research the Bill is largely based, found that there was extensive political discrimination in universities, with remainers against leavers, hostile attitudes between left and right, gender-critical researchers and transgender activists, reflected in difficulties in publication and probably other promotions in the university. There is today huge cultural pressure to conform to the acceptable doctrines of the time. Dissenters feel they must keep quiet. The Higher Education Policy Institute survey this month found a distressingly large amount of agreement among students about banning things that cause offence to them and a need to feel comfortable, which is not what you go to university for.
Sadly, current controversies over free speech have tended to divide along strong lines of black and white. Each side believes that the other is wrong and therefore stupid and to be silenced. It is happening over transgender, and it happened over Brexit. The French revolutionaries, the Cultural Revolution, Nazism and fascism all blocked free speech on the ground that they and they alone possessed the moral truth. Outside of the universities too, there is very limited liberty to say things that do not conform with the prevailing trend, and the consequences can be cancellation, loss of job or even violence. Even here in the House of Lords there have been attempts to silence our individual opinions and words.
But this new Bill is not only superfluous and riddled with contradictions and ambiguities but is likely to make the situation worse if activists use the complaints system to be instituted in the OfS and even take to the courts. A student life is only three years, and taking to the courts in any subject, as we know, is likely to last long beyond their graduation and do them no good. The complaints system will be in addition to the long-established and—I would say—successful one run by the Office of the Independent Adjudicator for Higher Education, which I set up. I cannot see how the director of freedom of speech at the OfS cannot be but conflicted. Moreover, I cannot see the point of duplicating what is already available at the adjudication office. It is possible under the Bill that the OfS might deal with one side of a complaint, from a staff member, and the OIA will receive a complaint from a student about the same incident. There needs to be clear demarcation. The OfS will be able to offer a remedy only for the free speech aspect, while the OIA can offer broader remedial action.
Sadly, I have had significant experience of trying to help Jewish students as a patron of UK Lawyers for Israel. Those students have faced threats to their safety and even refusals of references when trying to assert their rights to free expression. The London colleges, notably LSE, SOAS, KCL and UCL, are often regarded as hostile environments for Jewish students and, right now, Goldsmiths has embarked on a study of anti-Semitism in its college. This new legislation must not undermine the existing protections, flimsy though they are, to stop anti-Jewish racism and Holocaust denial.
The Bill refers to freedom of speech within the law without giving a definition. One can easily imagine a Holocaust denier or a Hamas leader taking legal recourse for being denied a platform. Holocaust denial is not actually illegal, but it has been argued that the Equality Act and Prevent duties will ensure that it is not permitted on campus. Not only has this not been tested, we know that every year extremist Islamist speakers are allowed on campus preaching hate.
Do the universities not also have duties to prevent harassment and foster good relations under their public sector equality duty? Are they doing it? Will freedom of speech trump the other values, not expressed in straightforward law, that universities promote? There is no requirement in the Bill to consider competing freedoms. How does an authority decide between, on the one hand, Holocaust denial as an exercise of freedom of speech, and, on the other, the right of Jewish students not to be harassed and defamed? Will there still be a duty to prevent serious psychological injury? What about the freedom to speak against transgender issues? Will academic freedom triumph over demonstrably false assertions? What about a lecturer who wants to say that the US election was stolen from Trump or that climate change is a lie? The emphasis in the Bill might in future provide a cover for knowingly malicious and mendacious conduct.
Conspiracy theories put forward together with intimidation and vilification may be permissible and tolerable as political speech, but not as academic freedom, which they are not, or free speech, which has to be based on truth, not pseudoscience or neglect of the truth. We have seen the dangers of that in the political sphere also.
How relevant will the IHRA definition of anti-Semitism, already mentioned and now adopted by 103 UK and Irish universities, be? The definition is not legally binding, but it addresses modern anti-Semitism, which is dressed up as opposition to the very existence of the only country in the world that offers a safe haven to Jews in a world of rising anti-Semitism. The definition should help universities to understand this. Far from it dampening criticism of Israel and exploration of the Palestine/Israel issues, there is no issue more explored on campus. Just Google and see endless debates and actions relating to boycotts, targeting of Jewish students, violent protests and day in, day out debate about those very issues. Will the Bill prohibit the boycott by institutions and organisations of Israeli academics and universities and, sometimes, the refusal of professors to support Jewish students who want to study Israeli matters or require references? There really is a problem but the Bill may very well make it more complex, more expensive and even worse.
My Lords, I find it rather depressing that Her Majesty’s Government have had to bring forward a Bill to ensure freedom of speech in higher education. I grew up in an era when you aspired to go to university not just to get wonderful academic teaching leading to a degree, but also to have the opportunity to explore new ideas, face challenges you had not met before, widen your horizons and challenge some of the traditional views. The idea that someone might not like what you said and try to stop or cancel you—a word we had never heard of in those days—rather than debating or arguing was unimaginable.
I understand why many in your Lordships’ House do not seem to think that the Bill is right but, sadly, I believe that the need for it is now clear and the reasons for the changes are many. I refer to the Policy Exchange report from 2020, which found a significant lack of “viewpoint diversity” at universities. Some of the statistics were shocking. As someone who campaigned all over the country for the United Kingdom to leave the European Union, the one that stood out for me was that just over 50% of academics would feel comfortable sitting next someone at lunch who was known just to have voted to leave—not even to have campaigned, so I will not be getting many invitations to academic lunches. That is just for having used your vote democratically in a parliamentary approved official referendum.
We have seen individual academic career prospects and access to research funding adversely affected by discrimination based on the individual academic’s views. Of course, the hounding of Professor Kathleen Stock, forced out of Sussex University by constant and repeated abuse and intimidation because of her views, has been slightly a focus of this Bill. But if this could happen to someone such as Professor Stock, how many other people coming into university to teach for the first time suddenly find that they have to be very, very careful about what they say?
A higher education council study is also alarming. It tracked attitudes of a representative sample of university students over the past six years. What it found should alarm all of us. The new generation of university students is increasingly supportive of removing from their campuses words, ideas, books, speakers and events they find uncomfortable or offensive. They seem willing to impose restrictions on others and to curtail views they disagree with. “Safe spaces” seems to be this new buzz word. We have to shield students from words and ideas that make them uncomfortable, and if you question or challenge this orthodoxy, you should be punished or ostracised. Matthew Goodwin pointed out in an excellent article on Unherd that a lot of this is happening right here in our own universities: refusing to allow tabloid newspapers to be sold on campus; banning speakers—maybe only a few, but nevertheless—who offend students; supporting getting rid of academics if they teach material that offends; and removing memorials of historical figures.
I do not want to stop anyone—to stop students—protesting about something they feel strongly about, and I do not believe the Bill does. In my day, we were always protesting about apartheid in South Africa, for example. I do not even mind students criticising lecturers on the grounds of the quality of their teaching; again, I do not think the Bill does that.
Academic freedom must be the primary duty of universities, and it should be defined more broadly than it is in the Bill. Too many of those in charge of our universities have been too weak or complacent to fight back against some of this behaviour. Too often, they have given into any demand from the student body, which must be agreed with at any cost, or they agree with anything that looks like it is the latest fad or, if I may use the term, a woke issue.
There will be amendments to this Bill which will make the protections of academic freedom stand fast. For example, in saying that HEPs must take reasonably practical steps to secure freedom of speech within the law, the duty is not clear enough. The responsibility to secure lawful free speech on topics of an academic or political nature should be an absolute and positive duty. I am sure that other amendments will come through your Lordships’ House, many of which have been suggested by what I consider to be the excellent Free Speech Union.
This freedom of speech Bill is about education, and education is devolved, but surely freedom of speech in universities across the United Kingdom should be in the Bill. In Northern Ireland we have one Russell group university, Queen’s University, and the University of Ulster. Why should this not apply there? If we wait for an Assembly to do something like this, none of us, not even the youngest Member of your Lordships’ House, will be around to see it happen. An amendment should be brought in to include those universities. Freedom of speech should not be a devolved issue. I remind your Lordships that, in the Ashers cake case, the Supreme Court recognised that ECHR Article 10 must include the right not to have to say what you do not believe. Prohibition of forced speech must be a key element of freedom of speech.
The Bill can be amended for the better to meet some of the challenges that noble Lords have already mentioned, but I support it. If it is changed quite a lot, it might be a wake-up call to those in authority in universities who have perhaps taken their eye off what academic freedom really is.
My Lords, I draw attention to my interests in the register, as chairman of Access Creative College, chairman of ApplyBoard and as another visiting professor at King’s College London.
I welcome what the Government are trying to do in this area, and it is obviously of great importance to the vitality of our higher education and research system. The Bill represents a very significant extension of the existing legislation on the statute book in relation to freedom of speech in higher education and, as my noble friend Lord Willetts said in his excellent speech, it will require significant reconciliation with the Prevent duty, the IHRA and other legislation coming through this House in this Session. Some of that tension obviously already exists with the existing legislation, but it will get a lot sharper as a result of the new tort, the statutory complaints system and the creation of the role of the director of free speech within the Office for Students.
Because these issues have already been pretty well debated in the other place, and here this afternoon, I want to focus in my brief time on the Government’s recent amendment on Report in the other place in relation to overseas funding. This came in relatively late and has not received as much attention as it might have done. It is a very important addition to the Bill and, although I very much support what it is trying to do, it requires significant improvement as it goes through this House. This section of the Bill now manages at once to be excessively bureaucratic and to miss a significant part of the problem that arises in relation to overseas funding of our higher education system.
The four categories of relevant funding that are addressed in the Government’s amendment are good as far as they go: namely, endowments, gifts and donations; research contracts; research grants; and educational and commercial partnerships involving foreign Governments, foreign organisations and politically exposed people in countries that are not on the approved ATAS list. If your funding comes in one of these sources from a country that is not a NATO or EU country, or Japan, Singapore or South Korea, you will be captured by the reporting requirement. My concern is that the reporting requirement is ridiculously bureaucratic. That arises because the threshold that has been set is far too low, at a proposed £75,000.
Take UCL, for example. This is an organisation with income of £1.6 billion in the last financial year, £500 million in research grants and almost £50 million in philanthropic donations. Obviously, not all higher education institutions in this country are as big as UCL, but to ask UCL to devote resources to counting every dollop of £75,000 that might come from an overseas source in this way is ridiculous. A more suitable threshold might be £1 million.
The control-freakery of the proposed threshold contrasts starkly with the super-chillaxed way in which the Government’s chosen definition of overseas funding manages to exclude altogether the largest source of such overseas funding: the income that universities receive from the uncapped tuition fees from international students. To be clear, I strongly support the contribution that international students make to the success of and the learning and research environment in our universities. However, it is extremely important, for obvious reasons, to have a diverse international student body, and I worry about the concentration of students from particular countries within some of our most significant institutions. This concentration of students from particular countries has the potential to create financial dependencies on student flows from particular countries that may limit freedom of speech and result in academic self-censorship.
Six of our Russell group institutions had more than 5,000 Chinese students in the most recent academic year. One of our leading Russell group institutions has more than 11,000 Chinese students out of a student body of 44,000. That is a very significant number; by my back-of-the-envelope calculation, they must be bringing into that institution more than £200 million of tuition fee income, representing at least a third, possibly more, of its tuition fee income from domestic and foreign students combined. This is potentially creating a lack of financial resilience in some of our most important research organisations and, with it, the associated threats to freedom of speech and research integrity that arise precisely from this dependence on the income from students from one big and autocratic country. This is a dependence that is now too big to ignore.
Others in this debate have raised the question of self-censorship. This is very difficult to measure precisely but we must not be complacent about it and pretend that it is not a problem in academia. As Professor Kerry Brown, the leading China expert at King’s College London, recently wrote in a paper for HEPI on China and self-censorship:
“While one can sometimes find tangible evidence in the form of conversations, emails, letters or other means, that pressure has been placed, with much self-censorship the act itself is invisible—it occurs in people’s heads, before and as they write and is very private … What is clear is that in the last few years, the fear and anxiety of facing individual and institutional consequences for straying over the ever-shifting red line that manages to offend China has risen dramatically … China is increasingly willing to call out those who criticise it. For universities, this can run the risk of impacting on the recruitment of Chinese students, or undertaking research collaborations with China.”
These are issues to be discussed in greater detail in Committee, but this is why I would welcome a broader definition of overseas funding than we have at present in this Bill. It would be sensible to add a duty on the Office for Students to consider whether a registered higher education provider is overly reliant on overseas tuition fee income from students from a single country of origin. If we are to legislate again on freedom of speech and higher education, this surely must be part of the discussion.
My Lords, it is a pleasure to follow the noble Lord, Lord Johnson, who was a very open-minded higher education Minister. This has been a fascinating debate, but quite disconcerting. We have just been dealing with the Schools Bill, a Bill so bad that three Conservative Education Ministers have called for it to be terminated, and now we face another Bill which appears unnecessary, irrelevant and possibly harmful too. When Gavin Williamson, the then Education Secretary, introduced it in the Commons, he was constantly interrupted with questions, complaints and observations from all sides about why the Government were wasting time on such a Bill. We do not interrupt in our House, we listen courteously, and I thank the noble Earl the Minister for carrying out the hapless task of trying to convince us that this Bill is worth our time and trouble.
Higher education institutions are more than aware of the importance of freedom of speech. It is important that young people should be exposed to views contrary to their own, in a caring and learning environment where views should be respected but most certainly challenged where they are prejudiced, ignorant or harmful. No one has a right not to be outraged or offended, although increasingly some young people feel that they should not be exposed to views contrary to their own. I remember a number of revolting students at Oxford in the 1960s and some very robust debate, but I do not think that any of us suffered from it.
The recent HEPI survey, which my noble friend Lord Wallace referenced, is disturbing in the number of young people who do not seem to want to operate outside their comfort zone. But why is this Bill needed? An assessment by the Office for Students found that just 53 out of 59,574 events with external speakers were refused permission in 2017-18. Perhaps that was an unusually slow year for cancel culture and there is a real problem. However, the Bill comes before we have had a proper national public debate about where we think the acceptable boundary sits between speech that is offensive or hurtful but that ought to be permitted under the Bill, and speech that is harmful, divisive and, although perhaps not unlawful, has no place on campus. We have not had that debate, so the Government are rushing into legislation before we have much tangible evidence of the boundaries of acceptability.
Freedom of speech and the free exchange of ideas in pursuit of truth and knowledge are central to our universities’ whole purpose, but where is the evidence that there is a problem? This Bill is unnecessary and unclear. There is a real risk that our universities will be subject to vexatious and frivolous claims, which will cause distress and waste time and may make universities more risk-averse and more cautious about whom they invite to speak. So students will not be exposed to contrary views or be able to frame arguments and responses in defence of their own views.
Of course, we have a right to free speech. We need to be able to challenge people whose views are different from ours. Informed public debate is a vital element of a democratic society. It is vital to academic freedom, however difficult and contentious it might be, but, as has already been mentioned, we already have laws to protect free speech in the Education (No. 2) Act 1986. We really do not need any new laws, particularly ones as contentious as this. We have an Office of the Independent Adjudicator for Higher Education—and our thanks to the noble Baroness, Lady Deech, for that. Why can it not deal with any problems in this area? The new director seems to have alarming powers, apparently without the need for any legal background.
I turn to no-platforming. As we have already heard, in 2019-20, of almost 10,000 events involving an external speaker, just six were cancelled—that is 0.06%. It is not a major problem and the heavy-handed proposals in this legislation are certainly not justified or needed. It has been said that this is an authoritarian sledgehammer to crack a nut. It might well give universities a reason to stop holding events that would broaden students’ minds.
We oppose the Bill. It is not based on evidence and is not proportionate. Worst of all, it actively undermines the very principle of free speech that it claims to support. Free speech is about the right of every individual to speak truth to power, but the Bill does the opposite. It gives those in power or with power the ability to determine who is free to say what. Far from protecting our freedoms, it is yet another example of the Government’s concerted efforts to take our freedoms away. Given that universities are already required to protect freedom of speech and that research suggests that no-platforming is incredibly rare, the Government should drop this Bill entirely.
As others have said, the likely consequence of all this is that universities and student unions will err on the side of caution and steer away from anything risky—in other words, not more free speech but less—and for those with really outlandish views, there will be a legal stick with which to beat institutions. We have already heard from the noble Baroness, Lady Royall, the great quotation of the principle:
“I disapprove of what you say, but I will defend to the death your right to say it.”
We have wasted enough time on the Schools Bill. Please do not make us waste yet more time on this one.
My Lords, I support this higher education Bill. I am sure it will benefit from the input of noble Lords in this Chamber, but its intention is good. This Bill is one of the first of its kind worldwide. It resets the balance in favour of freedom of thought and expression. It comes at a time when our public discourse and intellectual conversation are becoming increasingly intolerant.
Academic freedom is central to the character and nature of who we are as a nation. It is essential for the discovery of and search for truth, the foundation on which we build our society, to which my friend, the right reverend Prelate the Bishop of Coventry, drew our attention earlier. It is essential for the development of a resilient generation of critical thinkers who are not afraid of ideas. It is essential for progress: without the freedom to think and express the free exchange of ideas, the entrepreneurial spirit and the drive for innovation are extinguished. They are essential to the growth and prosperity of our nation and to a truly democratic society.
Only when people are able to think freely, speak freely and exchange ideas freely are good ideas able to flourish and bad ideas defeated. It is therefore vital that this freedom is protected among those whose very profession it is to exchange and debate ideas and pass them on to the next generation. There are some who, as we have been doing this afternoon, genuinely ask the question: “Is academic freedom under threat?” But for those who have sons and daughters in our universities, or who are connected with the academy, the answer will come back: “Yes, it is.” Perhaps it is not in the minds of those in illustrious posts that some hold in this Chamber, but parents up and down the land and professors and lecturers in our universities would say that that is their experience.
We need only consider the recent experience of Professor Kathleen Stock—hers one of nearly 100 recently recorded cases—to appreciate the toll that academic intolerance can take on the lives of those who dare to speak out in an increasingly hostile public square. This is damaging not only to the individual academic concerned but to the intellectual growth of our next generation of students. These students will soon join businesses up and down the land as active participants in the public square and in our workforce. They need to be able to engage in new, innovative and exciting ideas without fear and with creativity.
I appreciate that for some of your Lordships, like me, it has been a few years since we last sat in a tutorial or a lecture. I acknowledge that students have always questioned and critiqued dominant societal narratives. However, in recent years the power of students and student unions to lobby, disinvite and cancel speakers and professors from their universities has gained traction. This matters and universities do not appear to be equipped to resist this. For example, time and again university administrators have pursued the path of least resistance, opting to cave in to vocal minorities who seek to cancel or censor those who are disagreed with. Much of the focus of this afternoon has been on the free exchange of ideas between students, but this about professors and lecturers within universities as well. This cancelling of a speaker then creates a chilling effect in the academy, disincentivising those who profess new or unorthodox views from participating. This, in turn, damages viewpoint diversity, essential for a world of creative ideas to flourish.
Recent research at King’s College London suggests that one-quarter of students are self-censoring their views. Survey data collected by the University and College Union, a trade union representing more than 120,000 academics and support staff, suggested that one in three academics now self-censors due to the fear of suffering negative consequences if they voice their views or deviate from the dominant orthodoxy. This matters.
This environment in the academy has very real consequences, not only for scholarship but for professors and students themselves and, ultimately, for our nation. UK academics are significantly more likely than their counterparts across the European Union to report abuse and bullying, and to feel the need to conceal their beliefs. In a competitive marketplace of ideas, when we need to be driving growth and innovation, academic freedom stemming from the freedom to think and speak is critical.
I support this Bill because of the appropriate and moderate ways in which it seeks to actively promote academic freedom on campus and address the chilling effect of our cancel culture. I particularly draw attention to the creation of the free speech champion, which was discussed earlier. When a student or academic has been cancelled despite acting within the law, the free speech champion would be empowered to investigate and potentially fine or sanction the censoring bodies. The creation of this champion coincides with strengthening the duties around free speech, particularly around student unions, requiring them to respect freedom of speech as they carry out their functions. This Bill will give the regulator the teeth it needs to ensure that academic freedom is not just protected but promoted on campus.
Academic freedom is the ability to put forward new ideas and controversial or unpopular opinions. It is vital to remember that many of the intellectual and cultural positions we now seek to preserve came into existence by questioning the majority view. Academic freedom, alongside freedom of thought and freedom of speech, are our cardinal democratic freedoms: it is from these freedoms that all other liberties flow. If we get this Bill right, Britain can continue to declare itself a beacon of freedom and a model from which academic systems around the world can take inspiration, and we will empower the next generation to be intellectually resilient, able to engage with challenging ideas and equipped for all that lies ahead.
My Lords, I declare interests as a former chancellor of the Universities of Oxford Brookes and Essex, as, variously, a visiting and honorary fellow and professor of a number of universities and constituent colleges, as a visiting professor at the LSE and as, over this last academic year, someone who has benefited enormously from working with a PhD student at King’s College London.
I have always campaigned for freedom of speech and for all other fundamental rights and freedoms, from which it cannot be plucked or separated. I have done this, or tried to do this, on behalf of those who were for the moment vulnerable, demonised and endangered, including those with whom I profoundly disagreed and who have even denigrated the very rights that should protect them.
Today feels like “a bright cold day in April, with the clocks striking thirteen”. This Bill is wrong-headed in principle and clumsy in execution. Freedom of speech is not advanced by particularism, complex or onerous regulation or government tsars but when we each practise what we preach, lead by example and understand that it is the ultimate two-way street in a human rights framework built upon equal treatment, the very antithesis of which is partisan protection and hypocrisy. In short, my speech cannot be free while yours is always treated as a little more expensive or otherwise put practically beyond reach.
This Bill comes amid a wave of anti-rights legislation and rhetoric. In particular, on-street dissent has been criminalised today by the Police, Crime, Sentencing and Courts Act and will be eroded still further if the measures copied and pasted from anti-terror law in the Public Order Bill are allowed to pass. Cabinet Ministers and other government sources are on the record for their “war on woke” which, by definition, prioritises opinions that they find agreeable over those that they find uncomfortable in a kingdom that they do not seek to unite.
In a manner reminiscent of Mr Trump across the water, pro-Brexit protesters in 2019 and statue defenders in 2020 were actively encouraged by some of the same Ministers who now seek to impugn climate and race-equality activists and lawfully striking and picketing trade unionists. So higher education providers and student unions have good prior reason to give a critical, sceptical reading to this Bill.
To add insult to injury, we are speaking less than a week after the Government’s introduction of what Amnesty International called the “Rights Removal Bill” and at least one noble Lord opposite called the “Bill of Wrongs”. This proposes to repeal the Human Rights Act without a single enhancement of rights protection but drastic diminution instead. This is forensically important, as the Department for Education relies heavily upon the Human Rights Act in its various explanations and justifications for this opaque Bill.
In particular, while the rights removal Bill has been sold as enhancing free speech, it reduces the positive obligations on public authorities to guarantee rights within their realms and attempts to limit Article 10, on free speech protection, to areas outside the criminal law. That licenses ever-broader anti-speech offences and police powers in the future. So far from being universalist, the Government’s approach to rights and freedoms is not even constitutional or one-nation. Instead, it is contradictory and partisan.
As to the detailed convolutions of this Bill, your Lordships’ House will want to allow significant time for their scrutiny in Committee. In the meantime, will the Government prepare new memoranda explaining how the provisions will interact not just with the Human Rights Act, which they plan to scrap, but with its so-called replacement, alongside the Equality Act and Prevent programme, which has been such a complication of, if not threat to, free speech on campus, and all the other pre-existing regulatory duties on higher education bodies?
How can it be a protection of academic freedom to give more and more power over independent institutions of scholarship to the Government’s Office for Students and the new director for freedom of speech? Who is going to fund litigation for claims and defences of a breach of the new statutory duty, at a time when civil legal aid is virtually non-existent? How will institutions be protected from vexatious litigation by wealthier interest groups in particular? As to the new provisions relating to foreign funding, who should decide which funding is or is not acceptable in our world-class academy? How will our institutions of higher learning be protected from the weaponising of provisions in this Bill as proxies for human rights and other disputes internationally? What are the Government doing about what many academics feel to be the real threats to their freedom—precarious employment, lack of representation on governance structures, directions as to which research to undertake and political interference, including the attack on the arts?
You cannot cancel cancel culture, any more than you can realistically no-platform ideas you detest in the age of the internet. However, you can demonise the courts, the arts, the academy and even the young in a culture war of divide and rule. Some speech is free, it would seem, and some is rather more expensive: that is the real message behind this Orwellian Bill.
It is a pleasure to follow the noble Baroness, Lady Chakrabarti, who brings a great deal of expertise and insight to this important debate, as indeed have all Members who have contributed. I thank the Minister, first, for the comprehensive introduction to the debate and, secondly, for the constructive and kind way in which he has engaged with me in advance. I have also discussed assurances with the Secretary of State. I draw noble Lords’ attention to my registered interests, specifically my role as director of the London School of Economics and Political Science, which of course will be directly affected by this legislation.
It is absolutely right that the Government want to protect and promote freedom of speech. Indeed, freedom of speech and academic inquiry is central to everything that universities do. That necessitates the full freedom to pursue lines of academic inquiry, even when they may end up in uncomfortable places. At the LSE, our very international community welcomes speakers from across the political, national and ideological spectrum to its campus, as the noble Lord, Lord Wallace, noted. They set out their stalls, respond to challenge and, in the best traditions of university life, educate our students on different points of view and, more importantly, on how to engage with those different points of view with intelligence and respect.
As the noble Baronesses, Lady Thornton, Lady Royall and Lady Garden, noted, the House Library references a report and a survey of 10,000 cases of external speakers, only six of which were cancelled. That is 0.06% of all events surveyed. I am proud to say that, as far as I know, at LSE we have never no-platformed a speaker. That is because we actively manage and promote freedom of speech collectively. It is an interesting question whether you need 23 pages of legislation for a 0.06% problem, particularly given that the higher education sector faces so many other challenges, but here we are.
I turn to the content of the Bill, which proposes a new legal “Duty to promote” under Clauses 1 and 3. This would change the legal balance between the protection of freedom of expression and other statutory duties placed on universities over the years, such as the public sector equality duty and the Prevent duty. Those duties are in potential conflict with this legislation, as noted by the noble Baronesses, Lady Deech and Lady Chakrabarti. I would very much welcome insight from the Minister into how all these duties will coexist successfully and what guidance will be available to universities to avoid being caught in the middle of conflicting legal obligations.
Clause 4 would create an avenue for civil proceedings for anyone who believes that their freedom of speech has been curtailed. Drawn too broadly, this new tort would pave the way for vexatious, time-wasting and expensive litigation, as many Peers have noted. The Bill is very unclear as to the exact circumstances that would allow this tort to be pursued. For example, will there be a threshold of harm? I believe that there should be, similar to the threshold in the Defamation Act the Government passed in 2013. Will the Government confirm that this new tort could be pursued only if the existing university complaints procedures had been exhausted? Again, I believe that this should be written into the legislation, analogous to the protections in the new OfS complaints scheme set out in Clause 8. Better yet, choose just one route for complaints, as the noble Lord, Lord Willetts, suggested. I suggest that the regulatory route would be much simpler than the litigious one.
Clause 10 legislates for the new director for freedom of speech and academic freedom in the Office for Students, which has been much discussed. Of course, I understand that if we pass this legislation the Government will want expertise in the Office for Students to keep an eye on it, but we must be clear: the director must be an expert. I know that the recruitment process for this director has started. It would be reassuring to know that the selection panel is well staffed by those with expertise in the legal issues around free speech and the challenges facing universities, and will choose someone with expertise in both areas.
I turn finally to Clause 9, which sets out the requirement for the reporting of foreign donations to and contracts with UK universities. It is understandable that Ministers want to keep an eye on relationships with foreign powers and organisations, especially where there are issues of national security, but this must be proportional and risk-based. I therefore strongly welcome the Government’s commitment to ensure that there are sensible exemptions to the new reporting regimes, especially where national security risks are low. Although these exemptions will be set out in subsequent guidance, it would be helpful to have on the record the Government’s thinking thus far before the Bill passes. The Government have suggested a reporting threshold of £75,000 for foreign funding, though the equivalent in the United States is $250,000. A sensible equivalent would reduce undue bureaucracy and expensive costs for what are small-scale arrangements, as mentioned by the noble Lord, Lord Johnson. I am also keen to understand what additional resource the Office for Students will have to monitor what will be a significant increase in its workload.
In conclusion, I thank the Government for the constructive way in which they have approached this legislation so far. As the Bill progresses, I hope we can achieve some sensible amendments that will enable the Government’s ambitions to protect free speech while supporting a universities sector that continues to be the envy of the world.
My Lords, the noble Baroness, Lady Shafik, raises some interesting, detailed points that I hope we can look at in Committee. More broadly, I welcome the Bill—although I do so with something of a heavy heart and qualms.
I regret the need for legislation to enforce what should be intrinsic to universities, academic freedom, but I have watched with horror as the HE sector has tried to balance free speech against an ever-expanding array of institutionalised values and mandated outcomes over recent years: student satisfaction targets; promotion of equality, diversity and inclusion initiatives; and external benchmarking schemes in racial diversity, gender identity and environmental literacy. All can and do undermine curriculum freedom. Then there are the demands of the REF and the managerial prioritising of employability skills—on and on it goes. In the midst of this, academic freedom can and is squeezed out and deprioritised.
I hope to amend the Bill to strengthen the idea that academic freedom is the primary duty of universities. It is what distinguishes universities from think tanks, policy and research NGOs, private companies or tutorial and teaching services. The pursuit of knowledge for its own sake and true freedom to explore and challenge ideas without fear or favour are the point of academic freedom—no ifs or buts—and what makes a university a university.
Of course, we need to be wary of government overreach in the autonomy of universities and careful of the Bill’s unintended consequences, such as the chilling effect on students’ right to protest. I get the irony of the scorn poured on the Bill as a device for cancelling cancel culture. More than anything, I do not want the Bill’s proponents to treat this legislation as a technocratic silver bullet, as though all will be well if it is passed. Beware of legalistic complacency. Many of the most egregious censorious trends are cultural, informal and deep rooted, and need to be debated and defeated through the battle of ideas.
The main challenge the Bill faces are the opponents who dismiss the need for it, as we have heard here today, and see it as a hyped-up moral panic—some kind of tedious Tory culture war against woke students. I concede that the Government’s inconsistencies do not help to reassure. A few months ago, Education Secretary Nadhim Zahawi declared that he would crack down hard on academics who espouse dangerous narratives on the Russia-Ukraine war. Does this mean that the Government’s commitment to academic freedom is dependent on academics holding the correct views on foreign policy, or should we defend the free speech of useful idiots as well as those we agree with? The elephant in the room is surely the Online Safety Bill—a huge threat to free speech in the UK, as the noble Lord, Lord Willetts, indicated. He also noted a number of other contradictory trends.
That said, I think the gaslighting of those of us who raise the growing problem of censorship on campus is a form of denialism that is unhelpful. When I wrote the book, ‘I Find That Offensive!’, on the rise of Generation Snowflake’s campus censorship, I was accused of manufacturing a sensationalist crisis. Actually, I underestimated the trend. My motives were challenged as raising the alarm; I was treated as rather dodgy. That is the same as the cheap, conspiratorial accusations we have heard in this House today that this Bill is driven by some alt-right agenda as a disguise for hate and bigotry to gain a voice.
The idea that the Bill is a sledgehammer being used to crack a nut is expressed by those who seem stuck in the past with a dismissive, “Oh, it was ever thus—nothing to see here”. We keep hearing the same evidence from Wonkhe of 10,000 events involving external speakers, and only six were cancelled, and so on. But these no-platform stats miss the important point. Comments from opposition Benches here ignore the corrosive rise of self-censorship that the noble Baroness, Lady D’Souza, raised. You do not have to be de-platformed to feel its chill wind. The NUS has a guidebook called Managing the Risks Associated with External Speakers. If you are an external speaker, as I have been many times, you are asked to sign a form promising not to say anything that would make the audience feel uncomfortable.
The message is, “Watch what you say.” Often, speakers are cancelled, dismissed, or simply warned about the content of speeches on the basis of harm and safety—“Be careful”. JS Mill’s harm principle has now been expanded exponentially to include psychological harm, pathologising debates through the prism of therapeutic terms, with trigger warnings and post-traumatic stress disorder if you hear the wrong thing and so on. Safe spaces are not about protection of physical safety, but safety in terms of protection from dangerous ideas.
The threat of external speakers being banned as a safety risk today is very different from the no-platforming of the far right in the 1980s. It institutionalises the link between words and harm. No wonder people bite their lip. As has already been indicated, the main problem is less about external speakers than about a toxic atmosphere on campus for students and staff; self-censorship is damaging to intellectual inquiry. There is a mood of snitching and “watch your back”, a system of public shaming—of reporting one’s peers for “wrong-think” for comments made in seminars or in the bar.
Only recently, we saw the University of Cambridge setting up an anonymous reporting system, encouraging students and staff to name anyone considered guilty of a wide range of listed micro-aggressions. It is no surprise that in 2017 the trade union, the University and College Union, in its own report on academic freedom, reported that 35% of its members self-censor for fear of loss of privileges or demotion. A 2020 Survation poll for ADF found that 29% of students in British universities keep their views hidden when they are at odds with their peers or lecturers, that 40% withhold their views on religious or ethical subjects, and God help any Hungarian students studying in the UK who dare to admit that they voted for Orbán if they are at universities led by people in this House. Apparently, that is enough to get you cancelled. They would stay schtum.
If the price of expressing the wrong views is that you are dubbed the purveyor of hate, bigotry or wrong-think, obviously students and staff will shut up or are so careful that it leads to an anodyne, enervated and sanitised learning environment antithetical to an intellectually lively atmosphere of free inquiry. We should also note that it is not being cancelled but the process of being accused and investigated that has become the punishment, leaving a stigma and a question mark on one’s reputation. You have only to look at the case files of Academics for Academic Freedom or the Free Speech Union to get the gist.
In October 2020, a group of LGBT activists tried to get a porter from Clare College sacked because, in his role as a Labour councillor, he voted the wrong way on the issue of “trans women are women”. I do not blame those students; I blame our generation for not setting an example to them, and I blame those people who run universities for not looking them in the eye and saying, “Academic freedom matters more than anything else.” That is why I hope this Bill will help.
My Lords, it is always a great pleasure to follow the noble Baroness; she makes stimulating speeches. She does tend to overegg the pudding a bit; nevertheless, I listen to her with great interest, and I am delighted to follow her.
Free speech is more important than anything else—and we in this place ought to know that better almost than anyone. “The price of liberty,” said Burke—and of course, liberty without free speech is impossible—“is eternal vigilance.” I am glad that we are having this debate because there is currently a tendency among some to be a bit complacent. One thinks of some pretty horrific examples: Kathleen Stock, who has been mentioned by noble Lords on two or three occasions, and JK Rowling.
One of the cancers of our age, which makes the proliferation of coarse speech and crude attack so much easier, is social media. Many in our universities, and others, use this, and many suffer from it, so it is right for us to ask: what can we do about it? But I do not think a Bill like this is necessarily the best way forward.
Those who have questioned the wisdom of the Bill have more than a point. I say to my noble friend—who introduced the Bill with his characteristic gentle elegance and in whom I have as much trust as I have in anyone in political life—that it needs to be significantly improved if it is to go on the statute books and fulfil its purpose. I do not think we need such a Bill but, clearly, we are going to have one, so it is the duty of your Lordships’ House to make it as effective as possible, and as least disruptive as possible.
Speaking as one who has the honour to have been a visiting fellow at St Antony’s College, Oxford, who helped to found the parliamentary fellowship scheme 30 years ago, and who is still admitted to the senior common room—I have also visited many other universities, and I am on the court of Lincoln University—I believe that we have institutions of which we can be truly proud. But it is very important indeed that students are exposed to views and attitudes that they consider to be offensive, because that itself is stimulating. Unless you can produce a counter-argument, you have not understood the argument. It is crucial that our young people are stimulated and exposed to a variety of views, just as they should be exposed to a variety of academic and scientific disciplines. I very much hope that one thing that will be a casualty of this Bill is the so-called “trigger” movement. It has been dismissed, I am glad to say, but it was even suggested that the online version of Hansard should be adorned with trigger warnings that there may be some offensive language to follow.
Indeed, shame. I believe we have had that dealt with.
We know about the counterculture and the cancelling because earlier this year four of us were complained about to the Commissioner for Standards because of remarks we had made in a good, vigorous and brief debate on an amendment to a Bill that sought to end the presence of physically intact males in women’s prisons. The committee, now chaired rather splendidly by the noble Baroness, Lady Manningham-Buller, rewrote some of the rules and guidance, and the fundamental right that Members of both Houses have enjoyed since the Bill of Rights in 1689 was underlined thrice. That is as it should have been, but if we can be threatened even in this place then we have to be vigilant about the defence of free speech. If free speech is eroded in any way in our universities, the institutions from which future Members of both Houses will come, then that does not augur well.
As we know at the moment, democracy has to be fought for. As we know, there is a great power, the second greatest power in the world right now, which is already flexing its muscles in a variety of ways—roads and belts, belts and roads. We have to be a bastion of democracy, but we cannot be a bastion of democracy without having universities and colleges that produce vigorous democrats.
My Lords, since the noble Lord, Lord Whitty, is not present, it is my great pleasure to follow the noble Lord, Lord Cormack. In doing so, I refer to my entry in the register of interests as a former warden of Wadham College, Oxford and an honorary fellow there and at St Edmund Hall, Oxford.
I disagree with noble Lords who perceive no problem to be addressed, but I agree with noble Lords who have argued that the Bill addresses those problems in the wrong way. A few years ago, around 2014, when I was working in Oxford, I attended a public lecture given by the dean of the law school of a leading American Ivy League university. My role was to respond to his remarks before the topic was opened up to audience participation. He was addressing the question of free speech and to my consternation—and of course I paraphrase him somewhat—he posed the argument that free expression could most accurately be seen as a weapon of power in the hands of elites who were licensed by law to employ it to repress the disadvantaged and marginalised. In this sense, as he saw it, limits on the right to free expression could be seen as protective and in some circumstances even liberating. Language was power, and to police it could therefore be radical and affirming. In my responding remarks, I strongly disagreed with him and suggested that it was all right for him to be playing with such ideas, with all his copper-plated US first-amendment protections, but in Europe, where legal protections for free speech have always been more contingent and conditional and have had a more painful, bloody history, he was playing with fire.
It is important for us to acknowledge that, eight or so years later, those ideas that I first heard expressed in an Oxford lecture theatre have become a little more mainstream. It is more common than it should be, including in the UK, to hear free speech categorised as a threat to safety, when it is not being decried in some intellectual circles as an Enlightenment sham. It is perhaps less common than it should be to hear it described as the greatest historical progenitor of human progress.
The reasons for that shift, particularly on the left side of politics, are complex. There are some genuinely progressive elements in play: the growing understanding of the importance to society of protecting minority rights; distaste for racism, sexism and homophobia; and hostility to unfounded discrimination. It is surely an unalloyed good that terms of racist, sexist or homophobic abuse are no longer acceptable and that these forms of speech have, by broad consensus and even by law, been curtailed. However, the inroads into untrammelled speech are now going somewhat further than that, and there is a danger that we are beginning to descend into a world where feeling trumps fundamental rights, including the right to free speech. In universities, that is a hopeless direction of travel.
We should of course not overstate the position. In my old university, the University of Oxford, there is a powerful attachment to the fundamentals of free speech, driven from the top. Oxford’s official free speech statement, which I drafted along with Professor Timothy Garton Ash, is explicit that robust intellectual exchange and views that shock, even which offend, are bound to be part of the currency of discourse in higher education, that this is part of the lifeblood of the university and that it should be welcomed in the interests of truth and learning. Of course, that lifeblood is stilled if feeling —a sense of being offended—becomes the determinant of what may acceptably said. That is the risk that I assume the Bill is intended to address, and I think we should be frank and acknowledge that that risk exists.
HEPI’s survey was analysed by the think tank in this way:
“The results show clearly that students have become significantly less supportive of free expression.”
I will not run through all the statistics, but some of them are alarming: 79% of students believe that students who feel threatened should always have their demands for safety recognised; 61% say that when in doubt their university should ensure that all students are protected from discrimination rather than allowing unlimited free speech; the proportion of students who agree that if you debate an issue like sexism or racism then you make it acceptable has doubled to 35%; 86% of students support the no-platform policy of the National Union of Students while only 5% say the NUS should not limit free speech or discussion; 39% of students believe that student unions should ban all speakers who cause offence to some students; and the proportion of students who think that academics should be fired if they teach material that heavily offends some students is now 36%, up from 15% in 2016. So the direction of travel is towards a greater censoriousness and the prioritising of feelings and something called “safety” over more traditional free-speech values.
It is noticeable that no-platforming incidents, which newspapers routinely attribute to universities themselves, almost invariably result instead from decisions taken by very small numbers of students at poorly attended student union meetings. However, we have to acknowledge, as some noble Lords have, that this is the country—our country—in which a distinguished philosopher was forced from her university job for expressing, in an entirely lawful and respectful manner, gender-critical views: in other words, for exercising her free speech and her right to academic freedom. The fact that we all now probably suspect that Professor Kathleen Stock would struggle to gain future employment at another UK university without facing protests and boycotts even if she wanted to, which I understand she does not, is deeply worrying. I myself have had the experience more than once of young non-tenured academics lowering their voices when expressing to me views that they fear might not find favour with the bulk of their colleagues. That is troubling.
However, the Bill does not address these problems in the correct way, and I will swiftly indicate why. The first reason is bureaucracy. My experience of additional levels of bureaucracy is that they are not usually liberalising; quite the opposite—they tend to weigh down those to whom they are intended to administer. Will these new processes free up discourse, or will they do the opposite and encourage sclerosis?
The second is legal action. I can imagine many ways in which the process envisaged by the Government could become a tool of abuse, consuming time and resource to an uncomfortable degree.
Thirdly, the precise role and powers of the director of free speech—having listened to the speech by the noble Lord, Lord Wallace, with such pleasure, I was rather hoping he might apply for the position himself but, frankly, I do not think he would get past the vetting process—it is important that the independence of universities is protected and they do not become the plaything of quangos. Universities to the greatest extent should be self-governing institutions, and I am not attracted by the idea of a director of free speech running around issuing edicts that may or may not be workable on the ground. And how is all this to coexist with university anti-harassment policies? Harassment by speech occasionally exists and universities have to deal with it. It is not clear that Ministers have given sufficient thought to that.
My last reason is Prevent. Many of us argued when the Prevent duty was applied to universities that it created tension with existing legislation requiring universities to uphold free speech. At Oxford, we resolved this difficulty by deciding that the Prevent duty to address so-called non-violent extremism speech—in other words, the apparent requirement contained in the Prevent legislation for universities in some circumstances to block speech that was perfectly lawful, as the noble Lord, Lord Willetts, noted—was to be viewed and applied within the context of pre-existing rights, including the right to free speech. That seemed to work well. Does the Minister agree that, if the Bill is passed, the Prevent duty as it applies to universities will be subject to the free-speech strictures contained in the Bill?
My Lords, it is a privilege to follow the noble Lord and I rise as a rare speaker from the Conservative Benches who neither is nor ever has been a visiting professor or honorary fellow at a distinguished academic institution. I started this debate with quite an open mind but, listening carefully to the speeches opposite, I have been persuaded to give whole- hearted support to the Bill.
First of all, the Bill is not about student protest. When I was president of the Oxford Union many years ago, I had the privilege of welcoming the former President Richard Nixon to give an afternoon lecture. The demonstration was huge, carefully supervised by the local police and monitored by the US Secret Service. I welcomed that; the size of the demonstration was a measure of the success of the event. Even more than the numbers of students packed inside, the demonstration outside showed that you had really hit the button. I am not trying to stop student protest, nor is the Bill.
Instead, to understand the thrust of this Bill, it is helpful to start with one of the most perceptive, and one of my favourite, quotations from the late Lord Keynes. Since this is a debate of learned quotations, I hope noble Lords will forgive me if I read it to them:
“Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist. Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back.”
Indeed, I say as an aside to the right reverend Prelate the Bishop of Coventry, the whole debate around the Reformation was, in effect, framed by the academic scribbler he referred to, St Augustine of Hippo, some 1,100 years earlier, and the rather overexcited interpretations of those writings was still being worked out by a junior academic at a recently founded university lost in the forests of eastern Germany at the time.
The point I want to make is that academic thought has a real influence on social change, even if the time lag—as Lord Keynes said, it might be a few years or decades—is very significant. That is a really important point to take hold of. To take it a step further, taking their guidance from a contemporary of Keynes, Antonio Gramsci, activists are tempted in recognising this to seek to capture that academic podium precisely because of its long-term influence and, in doing so, to seek to deny it to others. That is exactly what many of us feel has been happening in our universities over the last decades.
Because of the shortage of time, I will not list examples. The noble Lord, Lord Macdonald of River Glaven, the noble Baroness, Lady Fox of Buckley, and others, have given many examples both of incidents and changes in attitude which illustrate what I think is going on and what is such a deep cause of concern to many of us. Noble Lords on the opposite Benches have said repeatedly that these incidents, which they admit are objectionable, are very rare. However, it is not the frequency of the events we should be looking at but their egregiousness. Their rarity could be taken as an example, proof or evidence of the success of the policy I have mentioned being pursued. As the noble Baroness, Lady Fox of Buckley, has said, the punishment is the process. As the noble Lord, Lord Johnson of Marylebone, said in relation to Chinese influence, self-censorship is the response. So, of course, if the policy is being successful, you would expect incidents to be rare. That in itself proves nothing.
This Bill is an attempt to rectify the balance in all of that. While it is probably inevitably ham-fisted, it none the less deserves our support in principle. It may be capable of certain improvements. I suggest two. I was very struck by the remark of the noble Baroness, Lady Fox of Buckley, that we should address the plurality of objectives that we impose on universities. A number of them were mentioned by the noble Lord, Lord Macdonald of River Glaven. We should address them by trying to create some priority among them: some are more important than others. I agree with the noble Baroness that academic freedom should perhaps be put at the top of that tree as an overriding priority, not simply competing with lots of others, which both confuses the leadership of universities and, equally, makes it easy for those who wish to exploit the situation to escape by running around different competing priorities. An amendment to that end would be very welcome and would provoke a very interesting debate.
The second area the Bill is wholly silent on, and where an amendment would certainly provoke some interesting debate, is funding. The Bill, as far as I can see, says nothing about the influence of funding on shaping academic debate and discussion and how capable it is of potential abuse. I mean both funding within the university and funding, usually on a much larger scale, from central funding councils making grants to support various areas of research. We might well want to see amendments to make that funding more transparent and show that it was balanced—I am not talking about funding flat earthers or people like that, but, within the limits of a sensible academic debate, making sure that people are being funded in a balanced and sensible way.
I welcome the Bill’s general principle and take the view that it could be strengthened. It would be a great mistake to try to oppose it by digging into the weeds. We need to see the trees and the forest, and to understand what we need to do.
My Lords, it is a great pleasure to follow the noble Lord, Lord Moylan. I declare my interests. I am an emeritus professor at the University of Essex and the University of Sheffield. I have spent some 43 years in the higher education sector. I have spoken at academic venues all over the world and I have welcomed scholars and other speakers from all over the world.
I just cannot see the need for this Bill. I have not encountered the problems this Bill is trying to deal with. There is more diversity of views on university campuses than at party-political conferences, but I do not see the Minister trying to introduce the notion of free speech for party conferences. Maybe because the Government’s problem is that they are really attacking civil liberties and clamping down on dissent. After all, young people have to learn to express their views and they just do not like it.
The Government claim that the Bill protects free speech, but there is no indication in the Bill or the Explanatory Notes, as far as I can see, of when free speech crosses into hate speech. What are the boundaries? When does one become the other? Free speech is a social construct; it is always in the process of being made but is never finally made. It is shaped by contemporary discourses. On that basis, I am willing to argue against racism, but I will never provide a platform to anybody who is willing to argue for racism. Does that make me unbalanced? I doubt it. I am trying to prioritise social justice over some vulgar version of free speech, and the two inevitably clash. I hope the Minister will be able to tell us how we mediate this clash—how does the Bill deal with this?
In his introductory remarks, the Minister said that the Bill strengthens freedom of speech and academic freedom, but I can find no evidence of this in its proposals. Academic freedoms include freedom of inquiry, investigation, publication and dissemination, and these are all under threat from the funders and the Government. I will give some examples. Too many funding contracts include clauses that give funders the final say on whether research can be published. They can and have blocked, in subtle and not-so-subtle ways, the publication of unwelcome findings—they just do not like it.
A classic example is a pharmaceutical company that funded a researcher to compare its branded thyroid drug with generic competitors. The researcher found that the generic products were just as good as the expensive branded products. The publication of that research would have jeopardised the funder’s sales and profits, so the drug company went to incredible lengths to suppress the research, including taking legal action against the researcher and the university to prevent them publishing the findings. I do not see the Government outlawing any of this or dealing with that problem in the Bill.
Over the years, several studies have focused on links between cancer and passive smoking, and tobacco companies have secretly funded research specifically designed to refute these links. They design the research questions and collect and provide the data, and, in the final analysis, their employees write parts of the paper, which has an academic’s name on it, so that they can gain political advantage from the research.
Industry funding drives researchers to study questions that do not upset the funders, which often means that they focus on maximising benefits and minimising harms related to the particular funder’s products or services. That is unacceptable. Uncomfortable questions are simply not asked. I am an accountant, and you would be hard-pushed to find an industry-funded piece of academic work that examines audit failures in any depth—there are not many studies on it, because people know that they will not get the funding if they want to do that kind of research.
The Government themselves have eroded academic freedoms. In November 2020, the British Medical Journal published an article titled:
“Covid-19: politicisation, ‘corruption,’ and suppression of science”.
It documented four instances of government suppression of research during the Covid pandemic. In one case, the Government procured an antibody test that fell short of the performance claims made by the manufacturer. Researchers from Public Health England and collaborating institutions pushed to publish their study’s findings before the Government committed to buying a million of these tests, but they were blocked by the Department of Health and the Prime Minister’s office. Subsequently, Public Health England unsuccessfully attempted to block the BMJ’s press release about the research paper. The key issue here is the conflicting commercial interests and consultancies of Ministers and their advisers—they just did not want to see this piece of research.
I will give a personal example. Some years ago, I secured a small grant from the Institute of Chartered Accountants in England and Wales to examine the resignation letters submitted by company auditors. By law, they have to say whether there are circumstances in connection with their resignation that shareholders and creditors need to be aware of. This was a big study. Only 2.5% of the auditor resignation letters at plcs were accompanied by any statement listing the reasons. Almost all filed a nil return, even though there were headlines and front-page news stories about scandals within days of the auditor resigning. There is massive legal non-compliance. We submitted the findings to the Institute of Chartered Accountants in England and Wales, but it was not happy about them. There was no correspondence, and it was all done on the phone: “We will tell you”, “We will come back to you, and then you can come back to us”. Years and months passed by, and it never published the information. I have been in the game long enough, so, in the end, I knew what to do: I found alternative means to publish papers from this—but not everyone can. I never went back to any accountancy bodies for research grants again.
My point is that the Bill does nothing to check the funders’ influence on academic research, and it completely fails to advance academic freedoms. I hope that the Minister will give serious thought to this is. If not, I will consider tabling some amendments to further explore these points.
My Lords, I declare my interest as an honorary fellow of Balliol, my former interest as head of the largest employer of graduates in this country, and perhaps even my future interest as the parent of an 18 year-old, hopefully heading off to university next year.
Parliament is right to want to protect academic freedom and free speech on campus. We have heard specific cases of concern today, and there is a problem that needs to be nipped in the bud. But we do not need battle slogans from the culture wars. Any legislative proposals need to be carefully calibrated because there are complex and competing considerations.
We have heard today that conflicts over academic freedoms stretch back through history. The noble Lord, Lord Wallace, started the clock at 1968, the noble Lord, Lord Moylan, mentioned the Reformation, and the right reverend Prelate the Bishop of Coventry mentioned St Augustine. I am reminded that our oldest university, Oxford, predates Parliament itself and Magna Carta. In 1377, John Wycliffe, translator of the Bible, found himself no-platformed by Pope Gregory and dismissed from the university. As a student, I remember looking out at the Martyrs’ Memorial, where Cranmer, Latimer and Ridley were “cancelled” by Mary Tudor as they were burned at the stake. In 1683, the books of John Milton, our greatest advocate for freedom of speech, were not subject to a trigger warning but burned in the Bodleian. So history tells us that these debates go back a long way.
History also teaches us that the greatest threats to academic freedom have generally come not from within universities but from overbearing theocracy and an overreaching state. This remains true around the world today, and it is not a left-versus-right issue. The Republican Governor of Florida is currently trying to rig academic appointments and gag professors. Authoritarian regimes of all ideological hues cannot stand independent universities, which is why China, Hungary and Iran all score badly on the global Academic Freedom Index. Subject to the important points made by the noble Lord, Lord Johnson of Marylebone, and the noble Baroness, Lady Shafik, this is why Clause 9 is, in my view, right in principle to require transparency about our universities’ international funding from countries that do not respect academic freedom.
However, that concern about government intrusion is also why we should be judicious, nuanced and restrained before we impose more state regulation and political control on our universities. As was pointed out, in your Lordships’ recent debate on the Schools Bill, a number of former Conservative Education Ministers objected to a centralising power grab by the Department for Education. This Bill suggests that that was not a one-off aberration.
Since this is Second Reading, it is worth considering the underlying principles at stake. First, we need to consider whether the Bill yet satisfactorily combines free speech protections on the one hand with safeguards for academic rigour on the other. Universities promote academic free inquiry because it contributes to their distinctive mission, which is to advance knowledge and education through structured debate, based on reason and evidence. Unlike Speakers’ Corner in Hyde Park, Twitter or the op-ed pages of a newspaper, universities have a distinctive responsibility to instil respect for established facts and evidence-based knowledge. It is a fundamental epistemological misconception to argue that the mission of universities places them under some sort of obligation to give airtime or credence to those who argue, for example, that there were no gulags in the Soviet Union, that vaccines cause autism, that the Protocols of the Elders of Zion are genuine or that intelligent design explains the origin of the universe. I say to the noble Baroness, Lady Fox: that is not viewpoint diversity, that is crank conspiracy and licensed idiocy. The Minister for Higher Education asserted in the Commons that this is not what this Bill will produce. Here, in your Lordships’ House, we should consider perhaps clarifying amendments to ensure that it does not.
The second question is the one my noble friend Lord Macdonald raised a moment ago: are universities striking the right balance between challenging discussion and inclusive participation? If not, will the Bill help or hinder? Universities have to weigh conflicting goals and legal obligations. Universities are right to try to ensure equal participation for all their students, because in an academic setting, it is the quality of reasoning and evidence that counts, not whether you are Jewish, black, female or gay. White supremacists and religious fundamentalists who regard some students as inherently inferior are, therefore, themselves intrinsically incompatible with the proper functioning of a university.
On the other hand, many academics worry that claims for identity-based protection are increasingly being weaponised, with the risk that universities become so-called sanctuaries for comfort. This afternoon, we have heard statistics from the Higher Education Policy Institute survey quoted extensively. I will repeat a particularly salient data point raised by my noble friend Lord Macdonald: 36% of students believe academics should be fired if they teach material that heavily offends some students—a proportion which has doubled in the past six years. There is also accumulating scientific evidence, including from randomised controlled trials, that trigger warnings and the like may actually harm, rather than protect, survivors of past trauma. So we need a course correction if we are to avoid spiralling towards the poisonous antagonisms now paralysing so many US college campuses. In doing so, however, we need to tread with care. As the Bill stands, a new politically appointed commissar in the OfS would be handed sweeping powers to oversee free speech and academic freedom in this country. The Bill has completely inadequate safeguards on how that post is appointed and how the new role will operate.
Furthermore, as the noble Lord, Lord Willetts, rightly argued, if the OfS is to have new regulatory oversight powers, there is no need to create competing, costly and complex alternative mechanisms via the courts. The Department for Education’s revised impact assessment, at page 24, laughably and ludicrously pretends that creating a new statutory tort will cost nobody anything ever. In the real world, Clause 4, as currently drafted, will ensnare our universities in vexatious, partisan and pointless litigation for years to come. At a time when universities’ real-terms tuition funding is being so heavily squeezed, every extra pound they have to spend on lawyers is a pound less for students. As we heard earlier, at a time when the courts in this country are already overwhelmed—with thousands of rape cases, violent crimes and civil claims waiting years to be heard—it makes no sense to divert scarce judicial resources to second-guessing both the Office for Students and universities themselves.
In summary, my view is that the Bill is going to need thoughtful and sensitive amendment to avoid doing more harm than good.
My Lords, I must apologise for going in and out of the Chamber while other noble Lords were speaking; I had not timetabled for all the business that happened between Oral Questions and the start of this debate.
I will first say that I happen to be a martyr in this struggle for academic freedom and freedom of speech. I was a lecturer at LSE in the academic year 1968-69, when at least two of my colleagues got sacked. Do not for a moment believe that we always had academic freedom in this country; nor should we believe that there is academic freedom in the United States, despite the first amendment and all that. The teacher who supervised me—whom I shall not name—had to leave the university overnight because of McCarthyism. He had to come to Oxford for shelter for a few years before he could go back to America. He was told, “Just leave the country and don’t ask any questions before you get called by the state legislature for your views.” He was an econometrician and a mathematical person; he was not even like me, someone with mixed thoughts. We must always ask for some protection.
Obviously, when you are old, you do not like what the young are doing; you think they are completely out of kilter and should be stopped from doing whatever they are doing. Notwithstanding that, I feel that there is a problem with academic freedom. From what I read in the newspapers, there is a problem with cancel culture. This clearly includes the idea that, if you discuss issues of gender or sex, there are bars to discussing those any further. It happened to me: I shall not name the person who stopped me, but when I was discussing International Women’s Day in a debate in your Lordships’ House and tried to make a distinction between people who are born women and those who have chosen to be women, someone immediately got up and said, “Stop this now; don’t go any further. You’re not allowed to go any further.” I thought that was all right and sat down. It did not really matter; I was not saying anything profoundly original.
I think there is a climate where there are certain topics which cannot be discussed. It used to be the case, again in the 1960s, with a man called Professor Eysenck who used to teach somewhere in south London that whenever he appeared at the LSE the most left-wing of the students used to want to prevent him from speaking. I was one of the few people saying: “Let him speak. Speaking does no harm to anybody. He is just expressing an opinion.”
The whole point is that people think speaking causes harm and speaking itself is an offence. This has happened with JK Rowling and the woman at Sussex who was a professor and had to leave.
I think there is a problem. Now, the question really is: does this Bill solve it or does it create other problems? I think that is a matter of detail; it is not a matter of principle. Even if it was true that academic freedom was beautifully protected and everything was fine, it would still not do any harm to have a law passed.
The question to examine is not whether the Bill is necessary but whether we can improve it so that it does more good than harm. It is our duty as the elderly House which has lots of talent in various ways: the people here who run universities, who have been to universities, who are free-thinking people. Let us get together and construct a solution to this problem which does as little harm as possible and as much good as possible.
I am somewhat worried about this thing about universities and foreign money. It almost looks to me like xenophobia, as if all foreign money is suspect and foreigners are not like us; therefore, they are not good enough. If they are giving money, why are they giving it?
I remember I had tutees from China in the great days of Mao. They came and I was able to subvert them. I thought that it was very good that they were there because I was able to tell them how they could think in a way independent of the way they were taught to think. I do not know what happened to them later on.
The fact that people from foreign countries with dubious prospects come to our universities is no problem. Our task is to make them think better, to think freely. Let us make quite sure that the universities satisfy the requirement of economic freedom and protect freedom of speech but, beyond that, let us not interfere too much and ask, “Why did you admit this man from Russia?” We normally give them peerages, but that is not always the right thing to do.
Our task is to make quite sure that our universities are safe to do what they want to do and people do not have to leave or resign or be blackballed just because they have a view which a noisy minority may not like. It is a Bill which we ought to improve and let us go ahead and improve it.
My Lords, in following the noble Lord, Lord Desai, I agree with him that the Bill is attempting to deal with very clear problems, but I am not sure it is dealing with them as a matter of detail. I think it also treads on the ground of principles. In following the noble Lord, Lord Desai, I am very conscious of the speech from the noble Lord, Lord Stevens, which I thought was an extremely good exposition of the position.
My question at this late stage in the debate in thinking about whether the Bill will improve the situation for freedom of speech is to wonder about the present regime. It depends predominantly on, I think, Section 43 of the 1986 Act and, of course, on the provisions of the 2017 Act, which set out the OfS.
It is interesting to look at the general duties in Section 2 of the 2017 Act. The first one is
“the need to protect the institutional autonomy of English higher education providers”.
I suppose that we agree with that.
I am not absolutely certain that every provider of higher education quite appreciates the importance of the word “autonomy”. I have a feeling that some providers, in their evidence that led to the Bill, are looking for some shelter or some cover, and my concern is not to give them that shelter or cover, and not to give up on the general duty to protect institutional autonomy, because it seems to me that, for a functioning democracy to work well, it is extremely important that we have autonomous institutions between Parliament and the people. I am not at all clear to what extent it is part of Parliament’s duty or, indeed, in Parliament’s interests, to get directly involved in trying to solve some of the problems that have been articulated this evening.
Indeed, Section 2(8)(a) of the 2017 Act, under “General duties”, which goes somewhat beyond the original list of eight duties, says that the OfS must have regard to
“the freedom of … providers … to conduct their day to day management in an effective and competent way.”
The freedom and indeed the duty to manage day-to-day affairs goes back a long way in our post-war history. It goes back, in fact, to Herbert Morrison and his control, on behalf of Attlee, of the nationalisation programme, where the distinctiveness of day-to-day management was set up and was extremely important to all of us who dealt with those institutions subsequently: on the whole, it worked extremely well. This leads me to say that Parliament should be very careful about eroding that freedom to conduct day-to-day management.
So, in thinking about these problems and thinking about the Bill, which is after all a big insertion into existing legislation—if and when it becomes an Act, it is not actually going to be a separate Act; it is going to be an insertion into the existing Act—we should be very conscious of the fact that it may be that this is not really a matter for Parliament when it comes to how we are going to deal with the problems of today and preserve the freedom of speech. I think we should have one more big effort to say to the higher education providers, “This matter is really up to you. There is sufficient legislation to enable you to carry out these duties, and we see it as being a preferable way of conducting business only to do those things that, after suitable consultation and pre-legislative scrutiny, we agree mutually should be done, rather than that anything is imposed upon you because we have identified a problem and, in our search for votes, we want to put something to Parliament without sufficient care and consideration.”
My Lords, like many noble Lords, and indeed like the noble Viscount, Lord Eccles, who has just spoken—my instincts are as he expressed—I have a certain prejudice against this Bill. That is how I originally approached this matter. I felt that free speech is so deep-rooted in the life of our universities that it needs no legal protection. I feared that statutory intervention in this area could prove cack-handed and, indeed, counterproductive. The noble Lord, Lord Willetts, reinforced that with his point about the online harms Bill: the contrast between that and the freedom of speech Bill seemed to be a very fine example of that doctrine of cakeism for which our Prime Minister is known—having your cake and eating it; doing two opposite things at once.
I have thought about this quite a lot, and I have come to think differently and to feel more strongly in favour of the Bill, for two reasons. The first is a matter of historical fact. We need to recognise that even our most ancient universities have not invariably upheld free speech. There are innumerable examples of this, but one that strikes me is that 150 years ago, roughly speaking, John Henry Newman, the future Cardinal Newman, famously converted to Rome. That is a very important event in the history of Christianity, but what is not remembered is that one of things he had to do when he did that was to resign his fellowship of Oriel College, Oxford. At that time, one could not say anything that denied Anglican beliefs if one worked at the University of Oxford. That is not an incredibly long time ago, so the freedom of speech that we hold so dear is actually something that really came about only in the late 19th century in our universities. By the same token, if it came about quite late, it could also go away quite easily: I do not think freedom of speech is necessarily as deeply ingrained as we might imagine.
But my second and more urgent reason for coming round to this Bill derives from my recent study of what has been happening in Cambridge. I do think that it is important to go through in some detail what actually is happening in universities in order to understand this. I should explain that Cambridge—I do not know if this counts as declaring an interest—is my own university, and many members of my family have been there. Indeed, my great, great, great aunt, Barbara Leigh Smith Bodichon, was the co-founder of the first women’s college, Girton. I love the place dearly, but I must say I have become alarmed about it.
More than two years ago, through a bit of journalistic research, I found out that Jesus College’s China Centre, far from providing academic study of that great nation, was pumping out what amounted to Xi Jinping propaganda. Its website used his own slogan “national rejuvenation” to praise his work. It gradually emerged as I started to ask more questions that the China Centre was financed by Chinese regime money and never invited critics of the Chinese Communist Party on to its platform. By this time, Covid was spreading from China throughout the world, but the China Centre had nothing to say. Had its silence, I wondered, been bought? I think perhaps it had—an astonishing thing that it could have happened in a great university. I must say I am glad that new Section 69D, I think it is, in this Bill—though I understand the worries of the noble Lord, Lord Johnson, about the detail of it—will make sure that there is provision so that we can understand if money is coming from foreign regimes. That is very important, particularly in the case of China.
I further discovered that this engagement with a communist regime was not the frolic of one college but was strongly backed by Cambridge’s vice-chancellor, Professor Stephen Toope, who had himself spoken in Beijing about his admiration for President Xi’s polices. I found that all my inquiries about these matters were fiercely resisted by the university and college authorities, I have never to this day been allowed to interview or speak to the director of the China Centre, Professor Nolan.
So it was in this context that I became interested in the universities’ current attitude to free speech. In 2019, the controversial conservative thinker Dr Jordan Peterson had had the offer of a visiting fellowship withdrawn because it was said his views might upset students. But on the other hand, Dr Priyamvada Gopal, a fellow of Churchill College, was very differently treated. After she was criticised online for tweeting the words “White Lives Don’t Matter”, she was immediately made a professor. Not long after that, in December 2020, Professor Toope promulgated a new definition of free speech which he wanted the university to adopt. It insisted that freedom of speech must be qualified by the need to be “respectful” of the opinions and “the diverse identity” of others. Freedom of speech was no good, he said, if people were
“made to feel personally attacked”.
Critics of Professor Toope’s approach did not, of course, support personal attacks, but they did point out that if being personally attacked was to be defined by the feelings of the alleged victim, then the effect would be to give any objector a veto on free speech. Despite backing for the Toope definition from the university establishment, the dons, led by Professor Arif Ahmed of Caius College, defeated it in a proportion of four to one, and the word “respect” in the Toope definition was replaced by “tolerate”, which is exactly right.
Now if that had been the end of it, I might have conceivably been voting “Not content” tonight, because self-correction would have prevailed without the need of law, but I was struck by what happened next. Professor Toope apparently accepted the revised definition, but six months later the university suddenly announced what it called a new reporting tool. This provided for the anonymous denunciation of those accused of “racism, discrimination, and microaggressions”. Its definition of racism included—
“a system of advantage that sets whiteness as the norm … and promoting (implicitly or explicitly) being white.”
If racism and whiteness were to be equated, some dons realised, no white person could ever be guaranteed freedom of speech: any exercise of that right could, by definition, be ruled racist. There was a fearful row about it and the Cambridge authorities muttered about how a template from other universities had somehow entered “certain ancillary material” into the system, and the reporting tool was withdrawn. However, in November, a Cambridge college—Downing—tried yet again, criticising “whiteness” and seeking to police not only conduct but beliefs. This document was slightly modified under protest but not withdrawn.
As the noble Baroness, Lady Fox, mentioned, this month, Cambridge University’s HR department put out what it calls a “mutual respect policy”. Although it insists that it contains nothing contrary to freedom of speech, it provides for mandatory training courses in which the concept of “respect” can be suborned to enforce or suppress certain opinions. I am afraid that, in many workplaces, HR is now becoming a politicised means of impeding free speech rather than caring for the needs of employees. I have taken your Lordships through this sequence because it shows a pattern to be found not only in Cambridge but across higher education, using co-ordinated materials and similar ideology.
Before the end of the last century, the concept of institutional racism was officially recognised. Today, I fear that a culture of institutional repression has grown up, most severe in the place where it should be least expected: our universities. It rarely attacks free speech directly but that is its intended effect. It exploits our proper concern to achieve the fair treatment of individuals —especially ethnic minority individuals—as cover for its purposes. I have witnessed how the leadership even of a university as great as Cambridge has allowed this to happen. I feel that Parliament is well justified in stepping in to arrest this repressive trend before it is too late, and I therefore support the Bill.
My Lords, I declare an interest as a publisher, often of higher education academic titles, which increasingly are digital-only and therefore easier to take down or cancel than physical books. I will come on to the relevance of that in a moment. Luckily for us all, as I am the last seven-minute speaker, a lot of the points I wanted to make have been expressed very eloquently by the noble Lord, Lord Willetts, and the noble Baroness, Lady Fox of Buckley, so this is a very shortened version of my speech.
Although any encouragement of free speech is welcome, there is an element here of the Government giving free speech with one hand and taking it away with the other. For example, an academic may now be able to lecture on a controversial subject—say, genetic or, heaven help us, gender politics or identity, all of which would come under legal free speech. But if that professor, one of his or her students or the institution posted that online and somebody out there who read it suffered hurt feelings, as they are bound to, and quickly organised a Twitter mob, which is not difficult to do, the Online Safety Bill would classify the content as “legal but harmful”—what a minefield those three words are—and outsource censorship of it to Silicon Valley AI bots, in exactly the same way as the CCP outsources its censorship of WeChat and Weibo, the Chinese equivalents.
In Committee, I hope we will be able to future-proof the good parts of the Higher Education (Freedom of Speech) Bill from the bad parts of the Online Safety Bill.
My Lords, this debate started with the noble Earl, Lord Howe, talking to us about the importance of free speech at our universities; he used the word “discourse”. He told us briefly what the Bill was about—first, putting further duties on higher education, which would be done by a code of practice. The Government are very good at developing codes of practice; they are just not very good at following them. I hope that if this code of practice appears, the Government will make sure that it is followed.
The Minister also told us that there would be a director of free speech. I wonder whether the former editor of the Daily Mail will be pushed into this job, or whether the position will be filled in a proper way.
Every single person I have listened to in this Chamber has rightly said how important free speech is and has stressed the importance of free speech in our universities and colleges. Quite a number of noble Lords have referenced Professor Kathleen Stock. I have to say that the way the University of Sussex handled that matter meant that it was not the University of Sussex’s finest hour. However, very few Members have mentioned all the other people who have been shouted down, abused, insulted and, in some cases, lost their jobs—through the institution called social media.
In a liberal democracy, citizens have, thank goodness, the right to speak their minds on the great and small issues of the day. Whether that is on a soapbox at Hyde Park Corner or in a lecture theatre in a university, the hallmark of our society is freedom of speech. Fundamentally, it is the right that makes our universities among the best in the world. We must remember, however, that with this great freedom comes great responsibility to uphold the law of the land. You can speak your mind on the most controversial issues, but allowing your argument to devolve into, for example, racism or xenophobia, is patently unacceptable and so it is also unlawful for individuals or organisations to hide behind freedom of speech while inciting hatred and violence. Speech has its boundaries. Protecting the human rights of some individuals should not entail infringing the rights of others.
There will be occasions when universities judge that in the interests of the safety and well-being of their collegiate body it is not advisable for a particular speaker to lecture on campus as their presence may either dangerously inflame passions or otherwise threaten students. It is a difficult decision to make, but it is a power that Governments retain when they decide to refuse entry permits for certain overseas visitors who are invited to speak at events; likewise, it is a decision that must remain the prerogative of individual universities, which have a duty of care and well-being for all their students. I fear that if passed, the Bill will strip those institutions of this ability to make those important decisions on behalf of their students’ safety and will subject universities to unending and needless lawsuits.
In truth, the Bill is just not needed, as my noble friend Lady Garden said. We have heard a lot of noise from the Government about how free speech is being curtailed on university campuses, speakers are being no-platformed and students are apparently unable to speak their minds. However, the Office for Students has found no evidence of free speech being systematically suppressed on campuses. Further, of all the speaker requests made to universities from 2019 to 2020, only 0.21%—I stress that—were rejected. Could the Minister tell me where is this “epidemic of suppression” the Government have been droning on about? Why are we spending hours on this legislation, subjecting university authorities to a potential landslide of civil suits and rendering universities less able to safeguard their students, all to rectify a problem that, if it exists, is very minor—0.21%. Is it really an issue?
The Bill sounds like a dog whistle for right-wingers who feel that universities are hothouses for left-wing thought and action. They are the very same right-wingers who shout “foul” when critics take aim at their ideas, be it the British Council, as my noble friend Lord Wallace said, or the BBC et cetera. The Government should not be entertaining this group of people at all, not least with a Bill such as this which opens up a Pandora’s box for our already stressed universities.
Those same stressed, and now threatened, universities are on the cutting edge of research, often doing world-leading work in conjunction with our international partners. It is vital this work continues, so I welcome the Bill’s inclusion of new, easier reporting requirements that will allow more seamless research agreements between our universities and our most trusted friends around the world. But the Bill could go further. We should also raise the reporting threshold for such agreements, so that small partnerships with other friendly nations are not needlessly held up by red tape.
Like the noble Lords, Lord Johnson of Marylebone and Lord Stevens, I welcome the addition to the Bill of countries exempt from the before-mentioned reporting standards. This will ensure that research partnerships with our most trusted allies will be unencumbered by the regulatory friction that can so often stall the best of agreements. Is the Minister worried that enforcing reporting requirements on non-exempt countries might have a chilling effect on foreign investment in our universities? I should be very appreciative if he could meet me and other concerned Peers at a later date to discuss this issue.
In closing, the Bill does more harm than good for our nation’s most important centres of education. Far from encouraging unfettered speech, I think we all need to recognise that language is a powerful weapon, and we should all be aware of the harm it can cause. We live in an age when we are, I hope, more aware of people’s feelings and of how words can affect people’s well-being and mental health. Protecting hurtful speech in the way the Bill does is not conducive to a more understanding society.
My Lords, I was not going to declare an interest until I heard the contribution from the noble Lord, Lord Cormack, which reminded me that I too had been a visiting parliamentary fellow at St Anthony’s, which I enjoyed very much. I was a joint fellow with a Conservative Peer and we planned a schedule of lectures with competing arguments, so I understand the value of challenging thought and ideas—it is absolutely what makes for progress.
As we heard in the excellent introductory speech from the noble Lord, Lord Wallace, the Bill has had a fragmented and bumpy ride through Parliament. Not many Bills would be introduced in May 2021, and complete their Committee stage in September of that year, and then finally get to Report and final stages on 13 June this year. What a long ride it has had.
The Bill is primarily searching for a problem. Sadly, my noble friend Lord Blunkett could not be with us today, but last week he put it to me that it is all about gesture politics. He said it is “Putting up an Aunt Sally that doesn’t really exist and knocking it down again”. What is the evidence? We have heard views about that. The report of the Joint Committee on Human Rights into free speech at universities in 2018 found that there was no major crisis of free speech on campus. As the noble Lord, Lord Storey, highlighted, the Office for Students said that 0.21% of invitations were rejected. We have heard a lot about the chilling effect, and it has lots of implications; whether it be for financing, through the number of foreign students, or for the number of grants, I have no doubt that it influences the response of institutions.
The noble Baroness, Lady Stroud, referenced the UCU evidence. What I found really interesting about the UCU briefing on this matter is that, when I was at university, academics talked about tenure guaranteeing freedom of speech and guaranteeing academic freedom. Now when a student goes to university, half their teachers are on short-term contracts and likely to be sacked for all kinds of reasons. If that is not a chilling effect on academic freedom, I do not know what is. Let us make sure that we look at the evidence.
My noble friend Lord Blunkett also said to me that this is a distraction from what really matters to the sector and to students. Three out of four students are currently worried about managing financially, one in four have less than £50 a month to live on after rent and bills, and 5% of students are using food banks. In my opinion, that is the real crisis in our universities. Of course, the challenges faced by students reflect what is going on in wider society. As my noble friend Lady Thornton said in her opening speech, unlike the Conservatives over the years, Labour has always championed free speech. It was a Labour Government who introduced a law guaranteeing freedom of expression.
What have we got here? We have a Bill that has gone through the Commons and that will create a director for freedom of speech and academic freedom on the OfS board, as well as a new OfS registration condition on free speech, strengthening an existing duty known as Section 43. It also introduces a statutory tort, giving private individuals a right to seek redress for loss incurred as a result of a breach of Section 43, and so-called enhanced contractual protections for academics with regard to academic freedom. It is very difficult to see that given the stats which I have just mentioned. The Bill also has the addition of a duty to disclose overseas gifts and contracts affecting freedom of speech—which no doubt has persuaded some noble Lords to support it.
Across the House, throughout this debate, I have heard the serious reservations of noble Lords about the unintended consequences of these proposals. I listened with great interest to the contribution of the noble Baroness, Lady Deech, whom I do not often agree with but on this one I completely agree with her. It is those unintended consequences that we should be most worried about. The Bill reflects a top-down, one-size-fits-all approach, which the noble Viscount, Lord Eccles, referred to. It demonstrates a weakness at the heart of the Government and their misplaced lack of trust in the academic community.
I hope the noble Earl will address the concerns raised in the debate, which are shared not only by noble Lords across the House but by the sector. We need to know how the Bill will interact with existing legislation and other duties which relate to free speech and academic freedom, including, as my noble friend highlighted, the proposals to reform the Human Rights Act. Ministers have claimed that the new statutory tort would be a backstop, but what safeguards will there be to ensure that it does not lead to universities having to defend themselves against vexatious and frivolous claims brought by anti-vaxxers, Holocaust deniers and hate preachers?
We have also heard, from the right reverend Prelate the Bishop of Coventry, about the interaction between the role of the OfS free speech complaints scheme and the director for freedom of speech and academic freedom, and how they will interact with existing ombudsman and, as the noble Baroness, Lady Deech, said, the Office of the Independent Adjudicator for Higher Education. We also believe, on these Benches, that there should be a requirement for the new director for freedom of speech to consider competing freedoms when investigating free speech complaints.
The noble Lord, Lord Johnson, raised overseas donations —a late addition to the Bill. As the noble Lord said, will the Government ensure that duties on overseas funding are targeted with risk-based exemptions and proportionate reporting? What sort of extra duties will be placed on universities? We need to have a proper assessment.
I have no doubt that we will return to these issues in Committee. I repeat my noble friend’s assertion: we will be tabling amendments to ensure that an independent appointments procedure is used for the post of director for freedom of speech, and also to ensure it is not a party-political appointment. I do hope the Minister will respond to her questions, specifically those about the post being advertised, the job description, and the requirements of the person specification for the job, which does not seem to address what we are being told the job is about. Certainly, with a closing date of 13 July, will we see this appointment being made before parliamentary approval?
Labour will also seek to broaden the definition of academic freedom, to include for example, criticism of institutions, conducting research and joining a union—something that I think is fundamental to a free and democratic society—and will also propose, as my noble friend said, a sunset clause to the legislation.
There is one thing I wanted to return to in more detail. If there is a problem—and I have heard from noble Lords and I accept there are issues to address—is this legislation the best way to deal with it? Surely, adopting and promoting best practice in our universities and with academics and teaching staff is the real answer. We have a sector that leads the world, and I understand the view of Universities UK that it is important that additional legislation and duties placed on universities that seek to address the small number of incidents that we have heard described this evening need to be proportionate. I have heard and read that Universities UK has stated its willingness to work with the Government on the Bill to demonstrate their members full and firm commitment to freedom of speech, which I think I have heard from across this House. But what I find most disappointing about the Government’s attitude is they have not really examined the vast array of really good practice. How do we encourage good practice? The Manchester guidelines, the Chicago principles or even Robert French’s independent review of freedom of speech in Australian higher education—to name but three—show countries around the world have similar issues, but the point is how they go about addressing them.
If the Government were really interested in promoting and protecting freedom of speech and academic freedom, they would seek to encourage this approach across the sector, as I think was referred to by the noble Viscount, Lord Eccles. It would be far more effective and would not have the unintended consequences that this proposed legislation would have. Such approaches would go a long way to fostering the healthy culture of debate that we all want on our campuses. We have to understand that, sometimes, institutions and student unions will get it wrong. That is the nature of debates on the parameters of free speech, but it is a small price worth paying for a collective and more consensual approach to protecting freedom of speech on campus.
I have heard about the competing pressure on freedom of speech, safe places and respect. As a student 45 years ago—or maybe longer, I suppose—as a young gay person trying to study in that environment, actually, disrespect did turn into hate speech, and hate speech turned into violence. Do not think of words as simply a painful experience, if they encourage violence. That is what we experienced with Section 28—words that said that you cannot preach something in schools because it is a danger to children. That was in Section 28, and it is what we must guard against. Respect is about respecting all; it is not just about a difference of opinion. I want debate but I also want to protect individuals.
My Lords, this has been a memorably good debate. I thank all speakers for the knowledge and personal insights that they brought to it. I am grateful particularly to those noble Lords who felt able to give the Bill a broad welcome and I look forward to their constructive support as it proceeds.
As we heard, by no means all who have spoken were so positive. Some, such as the noble Lords, Lord Wallace of Saltaire and Lord Collins, the noble Baronesses, Lady Thornton and Lady Royall, and my noble friend Lord Willetts are clearly very troubled by the Bill. So it is perhaps appropriate for me to start by addressing some of the deeper-rooted concerns that were expressed.
From the noble Lords, Lord Wallace and Lord Collins, the noble Baroness, Lady Garden, and others, we heard genuine concern that there is no substantive problem to be addressed and that any chilling effect or cases of no-platforming are being exaggerated, possibly even for political reasons. I understand these concerns, but let me try to allay them. The reality is that one needs look no further than the available data and information from the higher education sector itself to see that there is a problem.
In October last year, 200 academics wrote to the Times to report that they had received death threats and abuse simply for expressing views. They did not feel supported by their universities. One of those academics had expressed an opinion about the need to protect women-only spaces, such as refuges, prisons and hospital wards. However, this brought her into conflict with students and staff, who saw her opinions as transphobic. It also caused her to be compared to eugenicists and white supremacists, in addition to being called a bigot. This is just one case among those 200 staff who wrote to the Times.
Several studies, surveys and reports highlight instances in which freedom of speech and academic freedom are being curtailed in the higher education sector. A 2019 King’s College London report showed that 26% of students think violence can be justified in preventing someone espousing hateful views. A similar proportion reported not feeling free to express their views at university for fear of disagreeing with their peers.
There are also high-profile cases in which academics have been harassed for expressing perfectly lawful views. The noble Lord, Lord Macdonald, cited the case of Professor Kathleen Stock, who resigned from her post at the University of Sussex due to fears over her personal safety after harassment from students. There are many similar examples. Professor Rosa Freedman’s door at the University of Reading was drenched in urine. At Oxford a left-wing feminist academic, Selina Todd, had to be given security guards after threats to her safety. Raquel Rosario Sánchez, a PhD student at the University of Bristol, was subjected to a campaign of intimidation by trans activists after agreeing to chair an event, held by Woman’s Place UK, called A Woman’s Place is Speaking Out. I could go on.
There is without doubt a problem with the suppression of free speech on university campuses. I want to be very clear: it is not confined to either the right or the left of political opinion. This leads me on to my next point, which is to address concerns that the introduction of the Bill is politically motivated. Students and academics from across the political spectrum have been impacted by the censure of free speech on campuses. From those on the left to those on the right, there is a real fear about airing what might be controversial opinions. The Bill is designed to protect free speech on a diverse range of topics, including minority ones. Freedom of speech and academic freedom are fundamental principles in higher education. This is not about promoting and protecting one political view over another.
I will clarify a further point, prompted by the noble Baronesses, Lady D’Souza and Lady Garden, and mentioned by the noble Baroness, Lady Fox. The Bill is not just about eradicating no platform. It is about creating a wider culture on campus, such that everyone feels able to express their views and challenge those of others, even when those views are unpopular or controversial, and to do so without fear of negative consequences. Everyone needs to be aware that when things do not go as they should, there is a meaningful route of redress for individuals.
The noble Baroness, Lady D’Souza, followed that up by asking: does this not need cultural change, not just legislation? Absolutely, yes. This needs cultural change, and we welcome initiatives by universities, academics and students to do all they can to move in that direction. But as we have seen historically on issues such as gender equality, race discrimination and human rights, cultural change occurs more readily when backed by appropriate legislation.
I turn now to an issue that has given rise to a number of expressions of concern. I listened carefully to noble Lords such as the right reverend Prelate the Bishop of Coventry, my noble friend Lord Willetts and the noble Baroness, Lady Shafik, who are worried that the creation of a new tort, as proposed in Clause 4, may lead unintentionally to a deluge of court cases initiated by vexatious, publicity-seeking pressure groups. Nobody, least of all the Government, wishes to see universities burdened in this way. It may be helpful if I explain why I do not think the scenario that some noble Lords envisage is at all likely.
To succeed with a civil claim, a claimant would need to be able to show that a provider, college or student union owes them a duty of care; the category of those potentially owed a duty of care under the Bill is narrowly defined. They would then need to point to a genuine and material loss they had suffered as a result of a breach of the freedom of speech duties. Those tests are not a low bar, and any claimant who pursued their case vexatiously would certainly struggle to prove it. In the background, of course, a vexatious claimant would be assuming a considerable financial risk, not only in the form of their own legal costs but by being potentially liable for those of the defendant. That is why we believe the tort will be resorted to very much as a backstop. The availability of the free complaints scheme through the Office for Students, which will provide a much easier and more straightforward route to redress, should make litigation unnecessary and therefore unlikely in the vast majority of circumstances.
Setting aside for a moment the concerns around the tort, the noble Lords, Lord Wallace and Lord Storey, and the noble Baroness, Lady Royall, expressed a worry that the wider provisions of the Bill would impact on higher education institutions in terms of administrative burdens. I am the first to agree that unnecessary bureaucracy directly impacts on how well higher education providers can do their job; every pound spent on unnecessary bureaucracy is a pound less that is being spent on teaching and research. However, I am also convinced that if straightforward measures can be put in place to protect our core UK values, it is right and necessary that we do so. We have ensured that their scope is proportionate to the risk. To pick up a point made by the right reverend Prelate, we sincerely hope that providers and student unions will embrace the mission to generate rigorous and healthy debate on campus, understanding how vital it is to academia and our country’s democracy.
I turn to the proposal in the Bill to create a new post in the Office for Students: the director for freedom of speech and academic freedom. The noble Baronesses, Lady Thornton and Lady Royall, and the noble Lords, Lord Storey, Lord Wallace and Lord Collins, asked several questions about the appointment of this individual. As has been mentioned, the role was advertised publicly from 13 June 2022. To allay the doubts expressed on that score by the noble Baroness, Lady Thornton, and the noble Lord, Lord Collins, I can reassure them that the Government can undertake preparatory actions in anticipation of full implementation following Royal Assent.
Worries were expressed about bias in the appointments process. Freedom of speech and academic freedom are fundamental principles in higher education, not the preserve of one particular political view. The director for freedom of speech and academic freedom will be appointed in the same way that other members of the OfS are appointed, under the Higher Education and Research Act 2017 by the Secretary of State, and this will be done in the usual way in accordance with the public appointments process.
My noble friend Lord Willetts, who I am sorry to see is not in his place, asked why we need the regulatory route as well as the tort. As he is not here, I will write to him about that and copy the answer to other noble Lords.
The noble Baroness, Lady Royall, argued that the Bill establishes the possibility of simultaneous penalties. It is already possible for there to be a complaint through the Office of the Independent Adjudicator for Higher Education and regulatory action at the same time. The Bill does not change that. These actions perform different functions, with the complaint having the potential to provide the individual with redress but with regulation intended to ensure that provider behaviour as a whole meets its registration conditions using a proportionate approach based on risk.
The noble Baroness, Lady Deech, asked what the difference will be between the Office for Students complaints scheme and the complaints scheme operated by the OIA. While the Office of the Independent Adjudicator for Higher Education will remain the body for general student complaints about providers, the OfS scheme will focus exclusively on freedom of speech and academic freedom. The OfS will offer a complaints scheme for staff and visiting speakers who cannot complain to the OIA, as well as for complaints about student unions also not covered by the OIA scheme. All those who consider that they have suffered because of a breach of the new duties will have access to the OfS scheme, including students.
On a point raised by the noble Baroness, Lady Thornton, and the noble Lord, Lord Stevens, I make it clear that it will be for the OfS to make decisions, not the director personally. It is not unusual for a regulator to be able to consider legal matters when making decisions; for example, the Charity Commission already does this in relation to charity law. It is also common practice for out-of-court redress schemes to consider legal issues when making decisions around a recommendation of redress. If alternative dispute resolution bodies could not consider legal issues, they would not be able to fulfil their functions. For example, the Office of the Independent Adjudicator for Higher Education does this.
Returning to the issue of political bias—I draw this to the attention of the noble Lord, Lord Wallace—it is important to note that the chilling effect on free speech appears to increase when political views are expressed. Studies confirm that this affects people from across the political spectrum. Policy Exchange polling shows that 15% of those identifying as centre or left are choosing to self-censor. The Government are clear that freedom of speech is not about promoting and protecting one political view over another.
The noble Lord, Lord Sikka, asked how providers are supposed to know what speech is unlawful. The Bill does not change the legal position in this country on what speech is lawful and what is unlawful. It will be for providers, constituent colleges and student unions to determine the lawfulness of speech by considering it in the light of the provisions of criminal law, such as the Public Order Act 1986 and legislation such as the Equality Act 2010. That is no different from the process that they must go through already.
My noble friend Lord Willetts asked whether the Bill was designed to protect all legal speech. Once again, as he is not here, I will write to him about that and copy my answer to other noble Lords. However, I say to the noble Lord, Lord Stevens, that there is nothing in the Bill that encourages higher education providers or student unions to encourage baseless and harmful claims or bad science on campus.
Certain noble Lords suggested that the Government were presenting a confused picture to universities on such matters as anti-Semitism. The example of the IHRA definition of anti-Semitism, also referred to by the noble Baroness, Lady Deech, was mentioned. First, it is up to providers as independent and autonomous organisations to decide on whether to adopt the International Holocaust Remembrance Alliance definition of anti-Semitism. Secondly, the Government do not see a conflict between protecting freedom of speech and adopting the IHRA definition. I believe the Bill strengthens protections for freedom of speech likely to support Jewish students and staff, who, on a number of occasions, have had their speech shut down by others. However, the Government recognise that the adoption of the definition is necessary but not sufficient, and there is more that providers need to do to make sure that instances of anti-Semitism on campus are not tolerated.
I shall comment briefly on the Prevent duty, mentioned by a number of noble Lords, including the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Macdonald. The Government are clear that the Prevent duty should not be used to suppress freedom of speech. The duty requires providers and constituent colleges, when exercising their functions, to have due regard to the need to prevent people being drawn into terrorism. The legislation imposing the Prevent duty in relation to higher education specifically requires that providers must have particular regard to the duty to ensure freedom of speech and to the importance of academic freedom.
A number of speakers, including the noble Baroness, Lady Deech, referred to the vexed issue of Holocaust denial. I wish to be very clear on this point: any attempt to deny the scale or occurrence of the Holocaust is morally reprehensible and has no basis in fact. In many cases, those who deny the Holocaust also have links to neo-Nazi extremism, anti-Semitic violence and intimidation. The European Court of Human Rights has held that Holocaust denial is not protected speech under Article 10 of the European Convention on Human Rights, and our legislation does not change that. For the avoidance of any doubt, this legislation will not protect those who deny the Holocaust.
The noble Baroness, Lady Chakrabarti, asked about the Bill of Rights and specifically how that Bill and its amendments to Section 12 of the Human Rights Act will affect this Bill. The proposals to strengthen freedom of expression through reforms to the Human Rights Act complement the creation of this tort, which is seeking to give greater protection to free speech as well. If anything, the MoJ proposals only bolster the requirement that universities take steps to ensure free speech.
As a general comment, and in answer to those who have asked how the new duty fits with other legal duties a provider, college or student union may have under the Equality Act or criminal law, the duty to take “reasonably practicable” steps means that providers, colleges and student unions can take account of all their legal duties on a case-by-case basis. If another legal duty requires or gives rise to a certain action, it would not be “reasonably practicable” to override that.
My noble friend Lord Strathcarron was worried about the potential clash between this Bill and the Online Safety Bill. It is perhaps a debate for Committee, but I shall seek to persuade my noble friend that there is no conflict between that Bill and the one before us.
The noble Baroness, Lady Royall, raised the issue of overseas funding and asked why the OfS will ask for information about this pre-emptively. We are ensuring that the scope of the new reporting requirement on overseas funding is proportionate to the risk. We recognise the importance of protecting commercial sensitivities so that the sector does not fall behind its competitors in the rest of the world. We must ensure that the Office for Students has the information at its disposal to enable it to better understand the possible extent of influence from a foreign source at a country level. The reasons for that were well articulated by my noble friend Lord Moore.
My noble friend Lord Johnson, the noble Baroness, Lady Shafik, and the noble Lord, Lord Storey, questioned the level of the proposed threshold for reporting the receipt of overseas funds by a university and argued that the threshold should be higher than £75,000, which is the currently intended level. For now, I have listened carefully to the points they made. The Government have struck what they consider to be the right balance, but this is a matter to be determined in regulations, so there will be ample time to discuss it further.
In answer to the noble Baroness, Lady Chakrabarti, who asked what criteria will determine what overseas funding is acceptable, we continue to welcome foreign investment and donations to higher education as they are a key part of supporting innovation and development within our universities. Through the Bill, we are simply trying to implement measures that help to safeguard our world-leading higher education sector from those who may wish to interfere with our values. I would be happy to meet the noble Lord, Lord Storey, and other noble Lords to discuss these issues.
Time is now against me, as I have just been rightly reminded. I shall write to noble Lords whose questions I have not had time to address, including my noble friend Lord Eccles and the noble Baroness, Lady Hoey, who asked me why the Bill does not cover the rest of the UK. I thank all speakers for their contributions once again. I hope that my responses provided some useful clarification in response to the thoughtful points and questions that noble Lords raised.
Freedom of speech in our universities is under threat: unfortunately, a growing trend aims to prevent anyone from airing ideas that some groups may disagree with or find offensive, and we cannot ignore that. Hence, today, I have set out how the Bill will ensure that freedom of speech is both protected and promoted in higher education. It will strengthen existing freedom of speech duties and directly address gaps in the existing law, introducing clear consequences for breaches of the duties. Therefore, I take pleasure in commending the Bill to the House.
Bill read a second time and committed to a Grand Committee.