Committee (1st Day)
Relevant document: 3rd Report from the Constitution Committee
Clause 1: Duties of registered higher education providers
1: Clause 1, page 1, line 10, after “speech” insert “within the law”
Member’s explanatory statement
This amendment seeks to ensure that the definition of freedom of speech in section A1 is identical to that within A3.
My Lords, I rise to speak to Amendment 1 and other amendments in the name of my noble friend Lord Wallace of Saltaire, with his permission, as he cannot be with us in Committee today.
Quite often in Committee, the first amendment can seem a little trite. Sometimes it inserts “and” or deletes a semi-colon, because the way we have to table amendments is sometimes a little esoteric. On this occasion, the first amendment fits with the wide range of amendments that form this group—namely, in Amendment 1, my noble friend suggests that after “speech” we should insert “within the law”. This goes with a whole set of amendments that, in many ways, are trying to ensure that the variety of issues within this legislation, if it is necessary and has to pass—like my noble friend, I query its necessity—are dealt with. The first amendment seeks to make sure that we are clear about what we are looking at in the concept of freedom of speech. Reaffirming that within the law is clearly important.
My noble friend also tabled a range of amendments to insert or withdraw “beliefs”. He says that they are self-evident but, in particular, he wants the Committee to think about what His Majesty’s Government mean by “beliefs” in the context of this legislation, because the problem that this legislation purports to resolve is about freedom of speech in higher education, but that concept is not always well-defined.
At this point, I take a moment to declare my interests. As outlined in the register, I am an academic employed by the University of Cambridge, a fellow of Robinson College Cambridge and a non-executive director of the Oxford International Education Group, plus I sit on the odd advisory body of other places of higher education. Therefore, I have a professional interest in the Bill, but I also have an interest in ensuring that any legislation that we pass is absolutely clear. One of the biggest problems for many of us, whether in higher education or other parts of public service, is not necessarily whether the legislation exists but how clear it is and how effectively the people subject to it are going to be able to monitor it—is it clear to everybody? One of the best examples of this was the Licensing Act 2003. When it was introduced, it was full of uncertainty, vagueness and lack of clarity. It took many amendments and much work by local authorities to understand what the Government wanted.
It is important that in this legislation we are clear what is meant by “beliefs” and what the Government’s understanding of “beliefs” is. Also, as Amendment 3 in the name of the noble Lord, Lord Collins of Highbury, points out, we need to be clear what we are talking about in the context of freedom of speech in higher education. Although there are no Liberal Democrat signatories, I have no hesitation in putting forward Liberal Democrat support for Amendments 3 and 11, because both amendments are extremely important to bring clarity. I shall not pretend in Committee to channel my noble friend Lord Wallace; I shall simply move the amendment in his name, support those in the name of the noble Lord, Lord Collins of Highbury, and look forward to hearing the debate at this stage. I beg to move.
My Lords, I shall speak to Amendment 2, which is in my name and that of the noble Lord, Lord Triesman. The amendment seeks to do two things. First, it seeks to explore what the Government mean when they refer to
“freedom of speech within the law”
in new Section A1(2). Secondly, it seeks to avoid a possible inconsistency between the freedom of speech that the Bill seeks to protect and promote and the right to free expression that is protected by Article 10 of the European Convention on Human Rights.
There is a bit of history behind this amendment. I drafted it just after the Bill received its Second Reading in the summer. At that time, the Prime Minister was Boris Johnson, the Secretary of State for Justice was Dominic Raab and the Bill of Rights had just been introduced, which I think it is right to say he particularly favoured. The point that concerned me at that time was two Bills dealing with freedom of expression or the right to freedom of speech proceeding together without any connection between the two. What happened, as we all know, is that there was a change of Prime Minister. When Liz Truss became Prime Minister, Dominic Raab was no longer the Secretary of State for Justice and it was made known that the Bill of Rights was no longer to be proceeded with. However, there has been another change: we have a new Prime Minister, Dominic Raab has come back in again as Secretary of State for Justice and it is possible that the Bill of Rights may be resurrected and create the problem that I was anticipating in the summer. I stress that one of my motivations behind this amendment was to be sure that both bits of legislation, if they are to proceed, are in communication with each other and that, when we use the expressions “freedom of expression” or “freedom of speech”, we are talking about the same thing.
I come back to the point that I mentioned at the beginning: the phrase “within the law” needs some explanation. It seems to assume that the law already tells us what the freedom amounts to. I think that most people—certainly most lawyers—would tend to look to Article 10 of the European Convention on Human Rights as telling us what the freedom amounts to, because it spells it all out and it is suitably qualified for various reasons when you read the second part of Article 10. I should have thought that to build it into this Bill makes good sense. The amendment seeks to explain and give body to the expression “within the law”.
Those are the two reasons: first, to give greater body to the phrase “within the law”, so that everybody understands what it means and to preserve consistency with Article 10, which is part of our law; but also to avoid a possible inconsistency with the Bill of Rights, should it be reintroduced, because it would be unfortunate if that Bill, when it talks about freedom of speech, as it does, should be using a different basis for legislation. I should explain, and I am quoting now, that Clause 4 of the Bill of Rights says:
“When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right.”
It goes on to say:
“In this section ‘the right to freedom of speech’ means the Convention right”.
It then sets that out in full in the way that my amendment does.
My amendment is based on the wording that can be found in Clause 4(2) of the Bill of Rights as it was, and it is the best I can do to bring the two Bills into line. With great respect, I do not think that this amendment does anything to harm this Bill or in any way interfere with the basic principles which the Government are seeking to achieve by promoting this legislation. All I am trying to do is avoid misunderstandings and inconsistencies. With that background, I commend the amendment to the Committee.
My Lords, I start with my declaration of interests: I still hold academic posts at Cambridge, and I was the general secretary of what was the Association of University Teachers, now UCU—it is a rather different beast these days, but none the less, it was part of my history. It is a privilege to follow the noble and learned Lord, Lord Hope of Craighead. I think the distinction he makes, and the way we could embody consistency between potential pieces of legislation, is very important.
Although Amendment 22 is in a different group, I will make a point now which might mean that it does not have to be repeated later. It is very important to the academic world to know exactly what we as legislators mean by the different terms used. These terms are used very widely in academic life; they always have been and so they should. They were widely defended in academic life as being fundamental to its culture. I would like to believe that they are fundamental to the culture of many other parts of life as well, but they were fundamental to that culture. One of the reasons it is so important to express these concepts in this Bill, and one of the reasons I can understand why the Government have produced it now, is that, sadly, the challenges to freedom of speech and academic freedom have become much more acute and have not been dealt with particularly effectively.
I hark back to the earlier period precisely because the sector itself would have then dealt with these things very firmly and effectively. It was the DNA of the sector. Nobody would have questioned the right of people within the law to espouse views that were unpopular, take sometimes dogmatic positions and engage in every kind of argument under the sun, and, if others wished to try to rebut those arguments, to hear those other arguments in the same spirit. That was—I hope the Committee will forgive me for repeating the point, but it seems so fundamental—the DNA of this sector. I would like to feel that, when the final draft of this Bill appears, it will contain expressions about that which will be instantly recognisable to the people who used to celebrate those values. They will then see this as theirs, not just ours—not just what legislators think is right but what the sector was committed to and always believed was right. The noble and learned Lord, Lord Hope, has done us a great favour in saying that.
I also support wholeheartedly my noble friend Lord Collins’s amendments. I want to make one brief point about the concept of “within the law”. Generally speaking, I would hope that I understand what those words mean, but there are some areas where freedom of expression arises where I am not entirely sure that I do. I want to mention those here, not because I want to restrict people’s freedom of expression but because I do not want us to do undue harm to anybody. I am thinking here of the kind of coverage given in public by some people to the murder of the children at Sandy Hook and the case, which I believe will be reported on “Panorama” this evening—goodness knows how I know, but I have heard this—to do with people making gross allegations about what happened at the Manchester Arena bombing.
I am not 100% certain—and I shall not pretend to be, as I am not a lawyer but a mathematician by trade—whether those things are strictly against the law, or whether somebody getting up in a university and repeating those conspiracy theories would be breaking the law. I would dearly like to know, and it may well be that there are definitions that would be satisfying to me and to the Grand Committee. But what seems to me worth expressing and exploring is the thought that some things do such egregious harm to the victims of terrible crimes that we should not be negligent about preventing that harm being done to those near and dear to them and others scarred by that experience.
A simple way of dealing with it, I suppose, would be to say, “Here’s a law that prevents that kind of behaviour”, and then it would be contrary to the law. I am not confident enough to know whether that is the case. But on the margins of this, I do not want another parent, aunt, uncle, brother or sister to have references to those appalling crimes repeated ceaselessly and without any chance of redress. I make that point in part in agreeing with what my noble friend Lord Collins has said in his amendment. I would like to believe that the scope is wide enough to deal with what I think would be an appalling act, were it to be committed.
I come back to my fundamental point: at the end of this, whatever we say and whatever mechanisms we put in place, the academic community has to own it. It has to say that the culture of free speech is fundamental, and it needs to know that that is what it lives and breathes by. It will listen to legislation, but if it does not embody it in its own culture, we will have failed.
My Lords, I will speak to the two amendments in my name in this group, Amendments 13 and 28. In doing so, I am conscious of speaking after the noble and learned Lord, Lord Hope of Craighead, with whom I agree on the matter of principle—a nice easy place for me—but disagree on the response of substance. It always fills me with trepidation to think that I am not on the same page as he is on some things.
I shall address the two amendments in the reverse order and speak to Amendment 28 first. That amendment should have been coupled with a proposal to delete lines 36 to 38 on page 2, which it appears to replicate in some ways; that will be corrected at Report, if we get that far.
The substance of what we are discussing is essentially clear. The noble and learned Lord, Lord Hope of Craighead, has rightly pointed out that the Bill lacks a clear definition of what is meant by free speech, and on that we agree. He proposes that the definition of free speech be tied to the convention right in relation to free expression. My view is that that does not take us far enough. The convention right is, first, subject to the jurisdiction of the European Court of Human Rights, which has a history of narrowing that definition over time and creating more exceptions—for example, for the protection of reputation, and so forth. Because it is one that can be appealed in the European Court of Human Rights, it is likely to be interpreted in a very legalistic way by universities and to lead to a great deal of litigation. As the noble Lord, Lord Triesman, rightly said, universities need to be persuaded to own this as a project and not regard it simply as a further aspect of the legal thicket through which they have to work.
There is also great advantage in having a definition of freedom of speech which is a British tradition and based on British notions of common law: the notion that you are free to express anything which is not specifically prohibited by law. That is a different approach, if I may say so, from the one being advanced by the noble and learned Lord, Lord Hope of Craighead.
Amendment 28 is an attempt to put that approach—the idea that you can say something as long as it is not prohibited by law—into statute. That is the essence of Amendment 28. It contains an exception for Holocaust denial, but otherwise I think it resolves this question of defining freedom of speech in a clear and unambiguous way. I say this without knowing any more than the noble and learned Lord does about the Government’s current intentions in relation to the Human Rights Act, but my definition would future-proof the Bill against any attempt to resile from the European Convention on Human Rights that might come forward in such legislation, if it appears.
I now turn to Amendment 13, which is an attempt to define what is meant by reasonably practicable on the part of universities. Here, as the noble Lord, Lord Triesman, has made clear, drawing on his experience as an academic, there has been a significant change over the years in the attitude of universities towards these tricky and difficult questions. As he says, some years ago, when he was perhaps a younger academic, university authorities themselves were committed to freedom of speech and it was they who would be protecting those who wished to express controversial and difficult appointments from the activist behaviour, riots or mobbish-type behaviour that might seek to close them down. As the noble Lord implied, the situation now is that, very often, the problem arises not simply from the student activists but more from the university authorities. We perhaps need a more directive approach, one that makes clear the burden on university authorities to protect free speech, as we can no longer rely on that innate instinct of theirs to do so.
As I said, Amendment 13 is an attempt to do that. First, it makes it clear that doing nothing is a reasonable activity—so that not intervening in order to close things down is a perfectly reasonable activity—and that there should be a clear obligation of tolerance on universities, allowing them to restrict only speech that harms the functioning of the institution. That is a vague phrase which perhaps could be improved in discussion as we come to Report, but I suggest that that latter category would include anti-social behaviour of abuse and insult, or destructive behaviour or racism. Those things could be taken to harm the functioning of the institution, but they would be narrowly drawn so that, in practice, the university had a legal obligation to defend people’s right to their free speech.
It is, if I may say so, a different approach—a slightly fresh and unusual approach. We are understandably so used to relying on the European convention as the basis of our interpretation of rights in the modern age, but our rights go back to well before the drafting of and our accession to the European Convention on Human Rights. We have a proper and correct, distinctly British approach to rights: the notion that one should be able to say something that is not prohibited by law and free to do so is a much wider notion than that imported in the European convention. I think it is a defensible one, and I think the notion in Amendment 13 of what constitutes reasonably practicable addresses the change in circumstances since the 1986 Act in a way that the noble Lord, Lord Triesman, identified. I believe it makes the fairly vague obligation on universities in that Act much clearer and much more deliverable.
My Lords, it is a great pleasure to follow the noble Lord. In this very short but interesting debate we have already seen the problem that the Government are essentially seeking to address—a failure of leadership in many of our universities—through legislation that, given the amendments we have seen today, I suggest will be very hard to implement.
I remain unconvinced that this is the right way to tackle what is undoubtedly a problem in our universities. I first came across this when meeting Professor Kathleen Stock, who was subjected to horrific abuse in her own university for simply saying that your biological sex cannot be changed by feelings of identity, which I think are quite unexceptional and certainly legal remarks. Many other women academics in universities have felt threatened and censored for the simple act of trying to engage in these kinds of debates, particularly in relation to women’s sex-based rights. Unfortunately, many universities have allowed abusive behaviour to go unchallenged.
It seems to me that, at the heart of it, there is a question as to whether, even at this late stage, we can look to universities to put their house in order. I think that that would be a much more appropriate way forward than seeking to implement what I am convinced will be wildly impractical legislation. Already, our very civilised debate over what we mean by free speech suggests that this will be a huge problem when it comes to implementation.
The recent survey by the Higher Education Policy Institute showed a distinct shift in attitude by students, who it says
“have a very different conception of academic freedom and free speech norms than earlier generations”.
It suggests that these may have
“swung too far in one direction, with relatively few students recognising the unavoidable trade-offs involved with ever-greater restrictions on legal free speech.”
HEPI has come up with a list of things that it thinks universities might take forward, which seem very sensible to me. They include:
“reassessing formal procedures, such as existing codes of practice … ensuring consistent good practice, such as balancing controversial speakers with others … giving students improved information on academic norms, including in freshers’ weeks”.
I still think it might be better if the OfS, HEPI and the universities were allowed to work this through together. I suggest to the Minister that, if I were him, I would delay the date on which the Bill came into force to give universities time to try to change the culture and atmosphere within universities. This would be a much more practical and effective way of going forward.
However, if the Government are determined to press ahead, they clearly need to answer a lot of questions about the practical implementation of what they are proposing and the guidance to be given to universities. This is the reason for my Amendment 25. The question is how far intimidatory tactics against people speaking in universities are to be allowed under this legislation. We have seen intimidatory tactics. They can take a range of forms, including open letters demanding that an academic should be sacked for what they have said, vexatious complaints, petitions to publishers demanding that work be withdrawn, campaigns of defamation and smears, demands to prevent an academic being platformed, attempts to prevent events going ahead by threatening trouble if they do, and disrupting events that do go ahead. The targets of these tactics are typically women who believe that sex matters and have the courage to say so.
One possible response to these kinds of attacks is to frame the attempt to silence as itself a form of free speech, but this confuses the right to protest with a right to silence others. Speech that is merely intended to silence the speech of others, far from contributing to knowledge and learning, narrows the scope of the educational sphere. I argue that to frame attempts to silence as equally valid speech ignores the educational purpose of the university.
The amendment would explicitly exclude attempts to silence the speech of others from the scope of the core “secure” duty in the Bill and would require universities to take positive steps to mitigate the effects of those exercising what has been described as the “heckler’s veto” without disproportionately affecting the right to lawful protest. It would also clarify that the use of what I have described as the heckler’s veto to silence legitimate debate and dampen academic freedom on campus is not in itself protected speech.
This is a probing amendment because I want to hear what the Government have to say about our concept of free speech, how far it goes and what is to be done with intimidatory tactics. However, I am still left with the sense that the Bill as it stands is unworkable and will be an absolute nightmare for universities to implement. If only universities had shown leadership in the last few years this would not have been necessary.
My Lords, I will speak to Amendment 30. I should first apologise for not speaking at Second Reading. Because of other commitments I could not be there at the beginning and the end, or indeed to speak in the middle.
Amendment 30 seeks to add to the proposed matters to be addressed in the education providers’ code of practice. It would add a new paragraph to new Section A2(2), which would impose an obligation within the code of practice to put in place measures to ensure that politically motivated complaints against academics do not lead to time-consuming investigations. Education providers should have procedures enabling them to dismiss vexatious, frivolous, malicious or politically motivated complaints made against a member of their community—in other words, to snuff them out at the start. It might be that sensible universities will do that anyway, but if it is made part of a mandatory condition of the codes of practice then they will all have to do that, and make certain that they do.
It is plain that there are plenty of academics who hold unfashionable views of one kind or another, and they sometimes bring in unfashionable speakers with minority views. It is also plain from newspaper reports that we operate in a climate of fear, in the sense that academics and students are sometimes afraid for their careers. Without going into any unnecessary detail at this stage, the latest incidents were at Cambridge, where Professor Arif Ahmed, who is professor of philosophy, invited Helen Joyce, who has rather clear views on sex issues. We do not have to go there, but there was a tremendous hullabaloo and his own college, Gonville and Caius, made life very difficult for him.
What might have happened is that there might have been a complaint after the event or at the time. If a summary procedure is open to the university, it would see at once that such a complaint should not go any further but should be snuffed out at the beginning. This amendment is designed simply to provide for that and to encourage universities and other education providers to do things quickly and appropriately. That will help to improve the atmosphere.
My Lords, I shall speak to Amendment 36 in my name. I apologise for not speaking at Second Reading. I was then in the acute phase of Covid-19, so I guess noble Lords will all be rather pleased that I was not in the Chamber at that time.
I begin by saying that I believe that this is an unnecessary Bill that is clearly playing politics with the very important issue of how critical and independent thinking happens in our country. I share the view of the University and College Union that there are great threats to academic freedom in our country at the moment. Those threats include the extreme casualisation of many parts of the university workforce, low pay and the fact that universities are being forced increasingly to act like businesses. We see the impact that that has had on freedom of speech. At Leicester and Sheffield, universities I know quite well, we had seen that whole departments doing really creative, original, critical thinking have been decimated or destroyed by the imperative to go for business returns. However, I will resist the urge to make a Second Reading speech, tempting as it is, and focus on my Amendment 36, which is drawn from an amendment that was tabled in the other place and makes a crucial point.
Anyone who read the Times this morning will have seen some very disturbing articles about harassment, particularly sexual harassment, in our military. That is a reminder of how institutions that have existed for many centuries have accumulated cultures that tend to be extremely hierarchical, and it tends to be the more junior elements who suffer pressure from the more senior. That is where harassment can be a particular issue, as was identified by the article in the Times about the military this morning.
I bring a little personal experience in that, many years ago, before the Green Party took over my life, I was very interested in history. I went to a great many academic history seminars and one thing I noticed in those seminars was that questions were asked by the senior professors, then by the professors, then by the associate professors, then by the senior lecturers, and then by the lecturers. Universities and academia in general can be surprisingly extremely hierarchical organisations. When we talk about protection from harassment, we have to look particularly at the situation of more junior staff, especially those with the casualised contracts I mentioned earlier, as so many are.
I would prefer that the Bill did not exist at all, but since it does exist, I believe it is important that we have this protection against harassment, particularly harassment against more junior members who may find themselves effectively subjected to a barrage of attack under the guise of free speech. It is crucial that the Bill does not empower that to happen.
My Lords, I support Amendments 13 and 28, which I have put my name to. In general, I support any amendments in any of the groups coming up that aim to strengthen, extend or deepen the Bill’s duty to academic freedom and free speech, and that give some ballast to seeing free speech as not extraneous to the purpose of universities but core to their mission.
The key point in Amendment 13 for me is that it notes the nature of the speech as covering speech of a
“political, philosophical or academic nature”
“‘Speech of a political nature’ includes … debate of any question of public interest.”
That is the kind of broad definition that we need at the present time. Amendment 13 also seeks to clarify when steps are not reasonably practicable. It avoids the excuse often given, “We tried to be reasonably practicable but”, and instead makes free speech the default position, meaning that we are not just paying lip service to it.
This is important because we have to remember that, in the Education Act 1986, there was a clear duty to ensure free speech, academic freedom and so on. But, as other noble Lords have mentioned, it might already be in the law and yet the situation is deteriorating. In that sense, I am looking to bolster and improve or strengthen the free speech aspects of the law, not just to repeat them with threats—which is sometimes the way some people talk about the Bill.
The fact that those censorious trends have carried on despite the commitment to academic freedom in the Education Act 1986 is because universities generally argue, when controversies arise, that they are balancing academic freedom against other increasingly onerous statutory duties and institutional values. One excuse given is that of avoiding harassment, which is why I am rather concerned about the amendment of the noble Baroness, Lady Bennett of Manor Castle. I have recently found harassment to be a weasel word: for many words that we think we know what they mean, we often discover it is not quite as it was previously.
It is also why I support Amendment 28. I put my name to it because it aims to provide an enhanced sense of freedom of speech but it also—and this is key—clarifies the relationship between free speech on campus and other legal duties. The Equality Act 2010 specifies that universities must prevent harassment directed at members of their community who have protected characteristics. Section 26(4) of the Act, in which harassment is mentioned, is reasonably clear and caveated—it is not a blanket provision that anyone can say “harassment”—but because harassment is defined partially by the perception of the victim, it becomes problematic for us.
Over recent years, we have seen that universities are often overzealous in interpreting their responsibilities under the Equality Act, stressing the subjective perception of complainants and ignoring other tests in the Act. To give a couple of examples, that has resulted in the no-platforming of visiting speakers such as Professors Jo Phoenix and Rosa Freedman at the University of Essex, when it was claimed by trans activists that allowing them to speak would itself constitute harassment of trans students and staff, and the university authorities accepted that. They have since received apologies, but that is not the point I am making. This harassment excuse has added to a climate that morally devalues free speech by suggesting that it is itself harmful and that free speech can be harassment, especially to identity groups.
I suppose that gets me into the bulk of what has been discussed already: how do we define free speech? At the moment, free speech is constantly maligned as nothing more than hate speech. It is constantly said to me, “Oh, you support free speech. That is because you want the excuse to have hate speech”, or, “What is your attitude to hate speech?” I am concerned that hate speech is also ill-defined and too often amounts to little more than speech that we hate.
Perhaps we have to bite the bullet in our definitions here and recognise that there is a huge range of ideas that can be and are silenced as hateful. Even if we take hate speech at face value—something that most of us would agree was hateful, such as racist speech, bigoted views or whatever—as a free-speecher, and as I think is true in academic circles, I think we have to defend views that we do not like or consider to be bigoted. We might then have an argument about which of those views is bigoted or hateful. That is especially important in a university context because that is where we think we have the seat of debating, debunking and demolishing false ideas; that is one of the key purposes of universities in and of themselves.
One reason I worry about Amendment 3, from the noble Lord, Lord Collins, is that it claims that freedom of speech should not include freedom to espouse Holocaust denial—this is an awkward thing to talk about. It is also in Amendment 28, to which I have added my name, but I feel queasy about it. I want to probe why we would make Holocaust denial a special case. I understand that the Holocaust is a special case, and we all understand that Holocaust denial is abhorrent and monstrous, and part of the vile anti-Semitic playbook, and needs to be challenged at every opportunity. But it is not illegal in the United Kingdom. I wonder whether it is appropriate to use this legislation to make this one named exception. It might give a green light to it being said of other speech, “If that can be exempt from academic freedom, why cannot this particular hate speech be banned, even if it is legal?” There is a disingenuous strand of argument that says that the Bill will allow Holocaust denial, as though the nation’s students and academics are just waiting for the Bill to pass so that they can all rush out to deny the Holocaust. It just confuses what is really at stake here.
I want to say just a couple of other things. I have every sympathy for the amendment on the hecklers’ veto proposed by the noble Lord, Lord Hunt, and the noble Baroness, Lady Morris. But in a Bill that is meant to increase students’ rights to speak their mind, it might seem a bit of a problem to hint at restricting students’ freedom to speak, even if it is to shout loud slogans. I am genuinely torn on this, but I feel that it is the wrong thing to do, as it gives the impression that only certain people are allowed to speak; I am not keen on it.
On the general point made by the noble Lord, Lord Hunt, at the beginning, I have needed to be convinced that we need this Bill at all. There is a much deeper problem of cultural change, and I worry that people will think that this Bill will be enough—a legalistic tick-box exercise. I look at it like this: of course the Bill is not a silver bullet, but already it has created quite a big debate in universities, which is important. I am not keen on using legislation for messaging purposes; it has to be more than that. I think that we just need more speech.
I am delighted that there is an initiative at Cambridge University tomorrow night, with Alastair Donald from Living Freedom, Free Speech Champions, and professors at Cambridge, including Arif Ahmed, who has already been mentioned. They will be putting on a series of seminars on John Locke and John Milton and liberty of conscience. They are trying to have a proactive attitude, and I am all for that.
To the noble Lord, Lord Hunt, and others who are sceptical, I say that that is necessary but the Bill is the bottom line. The more that we can clarify through this Bill that free speech is under attack and that the law will not allow people to be penalised for speaking out in terms of academic freedom, the better. But we probably have to clarify what we mean by free speech before it will work.
I begin by saying that, although I do not know how many others here have, I have on more than one occasion been banned, or attempted to be banned, from speaking at a university. I was last issued a banning order by the University of Nottingham in 2009, I believe, which I ignored. Various people were running around with tape recorders. The argument put forward then was that I might say something offensive because I was speaking at the Jewish society.
In the 1980s I was banned, and I had to have a meeting reorganised in a local hostelry. I was banned then because—it was very simple and straightforward—I had had the audacity the year before to visit the state of Israel. I spent four days there with the Government, but I also spent four days with Fatah, the Palestinian liberation organisation on the West Bank. It seemed to me a balanced visit, and very interesting and educational. But I was banned from speaking at a university and in two other universities my publicity was withdrawn, which made it rather difficult for anyone to attend a meeting because they did not know that one was taking place.
So this is not a new problem—and nor is it a new problem in terms of debate. I recall well the speaker tour of the Paedophile Information Exchange across universities, which took place in 1978 and 1979. Many universities had such speakers; the content was not illegal but without question it was an organising campaign for that organisation, much more than an educative one. That was certainly my assessment of it. I recall in 1985 the banning of Jewish societies, on the basis that they were bound to be racist because they were full of racists and therefore should not be allowed any space in a university. I make the point simply to inform the debate—we are not talking about a modern phenomenon.
I want to pick up one particular point from these amendments: the proposal on Holocaust denial. It is true that Holocaust denial is not a criminal offence in this country, unlike in other countries, such as Germany and Austria—I think seven or eight countries across western Europe have that. To me, that does not seem a sufficient reason not to have such an egregious denial of history in this legislation. It would be a positive outcome if the Government wished to go further in terms of criminal justice. That would be done by a separate department, with separate legislation, and it may well get some support. In this context, it seems that provisions on the acceptability of entirely turning history on its head would be helpful to our universities, although the main problem we have these days is of course Holocaust distortion and minimisation. I would not suggest going further into a much greyer area, but I think this proposal ought to be considered very strongly by the Government.
My Lords, I declare an interest as the former warden of Wadham College, Oxford, and as an honorary fellow there and at St Edmund Hall, Oxford.
I have a great deal of sympathy with the remarks made by the noble Lord, Lord Hunt, in which he identified a problem but suggested that this Bill was not the right way to confront it. As the noble Baroness, Lady Fox, rightly said, the problem is a very deep-seated cultural issue that I doubt will be dealt with significantly by this legislation, should it pass. It is my experience of running a college that has led me to feel rather queasy about some of the slightly nightmarish, as I see them, schemes and bureaucracies proposed by the Bill.
Of course, there is an issue. The case of Kathleen Stock is the most egregious example. In my view, she was disgracefully mistreated by her university and professional colleagues, not to speak of the students at the University of Sussex, some of whom seemed to be clearly breaking criminal law with the demonstrations they mounted against that highly respected academic. Young men—they seemed to be men—wearing balaclavas, holding flares and chanting threats against her seemed to me clearly to represent a breach of the criminal law, and it is a great shame that the university did not see it that way.
However, it is not just Kathleen Stock. The events in a Cambridge college over the past few days have also been deeply disturbing. The idea that a writer such as Helen Joyce, who I would regard as entirely in the mainstream, should be regarded by the most senior figures in that college as unacceptable as a speaker seems deeply depressing and redolent of a cultural problem, not just in that college.
An amendment put forward by the noble Lord, Lord Hunt, therefore attracted my interest. It is the one that relates to the question of a hecklers’ veto. The way I perceive it, the issue in universities is not so much that events are being stopped by demonstrators standing outside chanting and making a nuisance of themselves; it is the more or less cowardly response of university and college authorities who decline to host events when they fear or are warned that that sort of response will eventuate. This is a true hecklers’ veto. I have some sympathy with that amendment, although I share again the hesitation expressed by the noble Baroness, Lady Fox, that the Bill should contain a clause which is anti-free speech, if you like, rather than it being consistently pro-free speech.
I have great respect for the noble Lord, Lord Moylan, but I strongly disagree that Article 10 is somehow deficient for our needs in this area. On the country, it provides generous and comprehensive jurisprudence on the right to free speech; it is suitably qualified and well understood by our courts, public bodies and public institutions. It is certainly well understood in the University of Oxford, the university I have been most associated with. I think Article 10 is entirely fit for purpose and I strongly support the amendment from the noble and learned Lord, Lord Hope, to reference it in this legislation. It would provide consistency and legal certainty, so I hope the amendment will not in the end be controversial with the Government.
My Lords, I did speak at Second Reading, so I really am not going to make a Second Reading speech; I am not going to say I am not and then do it. Although I have been clear that I think the Bill is a mistake that will lead to a great deal of time-consuming, heartbreaking and expensive litigation for our universities, which should instead be engaging in what they should be engaging in, including creating the culture that we all want, I say in some sort of spirit of bipartisanship to the noble Lords and Ministers opposite that the amendment from the noble and learned Lord, Lord Hope, is a learned and friendly gesture indeed.
All these amendments and everything that I have heard so far merely emphasise the dangerous complexity of legislating so clearly in the realm of a convention right without referring to it at all, save the statement that the Minister is required to make on the cover of the Bill about compatibility with Article 10. It is clearly the Government’s intention that this Bill, wrong-headed though I think it is, should comply with Article 10, so to try to redefine Article 10 in a slightly different way in the body of the Bill is a mistake that adds to the complexity and the danger for different regulatory bodies, be it the Equality and Human Rights Commission or the Office for Students. The noble and learned Lord has helped by making it clear that freedom of speech within the law in the United Kingdom means compliance with Article 10 of the convention. Frankly, that was pretty much the case before incorporation by way of the Human Rights Act.
I take the point from the noble Lord, Lord Moylan, that, with the resurrection of the former Justice Secretary and Deputy Prime Minister, he wants to future-proof and hopes for the scrapping of the Human Rights Act, but even the rather botched and misnamed Bill of Rights Bill purports to comply with Article 10. It is jumping the gun to try to define freedom of speech within this sector differently from the way it is defined in every other aspect of UK law and life.
I also say to the noble Lord, whose libertarian instincts on free speech I share, that, as a matter of jurisprudence and law, he is mistaken in a number of ways. It is all very well banging the drum for the common law, but there literally was no actionable right to free speech in this country until Article 10 was incorporated by the Human Rights Act. There could be under a future Bill of Rights, but there literally is not this magic thing in the common law that will protect people’s free expression without Article 10. Why? Because Parliament is sovereign and every other law that impacts on free speech will trump the free speech that I believe the noble Lord wants to see. Evidence for that lies in the issues around policing and all the other things that he has touched on in the Chamber in his time in the House. Parliamentary sovereignty will trump common law, and without Article 10 there is currently no actionable right to freedom of expression in this country.
With respect, his Amendment 28 fails to achieve what he would like. It is much more limiting a protection than the protection in the extensive jurisprudence of Article 10. For example, to say:
“‘Freedom of speech within the law’ means”
freedom of speech that
“is not prohibited by law”
is somewhat circular.
Crucially, to give a great big “get out of jail free” card for any confidentiality agreement will make a lot of people very nervous about the way in which such confidentiality agreements have been used and abused by the powerful against employees and other staff in recent years. The beauty of Article 10 is that it would not be open to a funder or a university to construct such a non-disclosure agreement in a way that did not comply with Article 10. They are public authorities under the Human Rights Act. As long as we have the Human Rights Act, they must honour their Article 10 obligations to protect people’s free speech, even when they are considering employment contracts, confidentiality agreements and so on. It is a mistake—and it interferes with the precious right to free speech—to make exceptions in that way.
Finally on this whole issue of the relationship between Article 10 and the Bill, the point from the noble Lord, Lord Moylan, worrying about the jurisdiction of the Strasbourg court because it is an appeal court, as he put it, is not quite right. He will appreciate that only victims of human rights abuses can go to the Strasbourg court, not the Government. It is really our own Supreme Court here in the UK that is a proper appeal court and referee in relation to free speech. If people are unhappy about what the Supreme Court has found, only a victim—not a public authority or the Government—can seek further redress in the Strasbourg court.
The noble Lord, Lord Moylan, will also know that our courts, and ultimately our Supreme Court, need only take account of the Strasbourg jurisprudence; they are not bound by it. So Article 10 is actually squarely in the hands of our own judges to make their own jurisprudence.
Universities are already public authorities under the Human Rights Act. If they are not discharging their duties currently, that will partly be a matter of culture. It may also be a matter of students, academics and others not having the confidence to challenge universities, or perhaps not having access to legal aid in order to do so.
We will come on to the mechanisms of complex litigation later. I commend Amendment 2 from the noble and learned Lord, Lord Hope, and my noble friend Lord Triesman. While I disagree with the Government, I think they would be very wise indeed to accept it.
My Lords, it sounds to me that the noble Baroness is making the case for why Article 10 is insufficient. It applies already and it is not working. She has given a number of reasons why it is not working. It has not achieved the culture shift that—I think this is common ground—we believe needs to be achieved.
Inasmuch as there is a limit to what any legislation can do without the resources and culture, clearly that is the case. This is an argument that people make against human rights all the time. My point is simply that, if you are legislating for free speech in any sector in this country, you have to make reference to the human right to free speech in this country. Our current legal regime means that that is Article 10.
With respect, I have not made a case against human rights. The definition I propose does not impinge on or restrict Article 10; it actually gives greater freedom and greater rights. I quibble at that point, because it is quite a serious point if it is being suggested that I am trying to impinge on existing rights. I am not.
I beg the noble Lord’s pardon. I take the point, and I tried to make it clear that I know that he has a very libertarian instinct towards free speech, which I share. I tried to argue that his Amendment 28 is more restrictive than Article 10; that is a matter of the way that it has been crafted.
My general point is that if this area of complexity that we are entering is to be made even more complex and potentially incoherent by having two different definitions of freedom of speech—one for everyone in the country and in the Council of Europe, to some extent, under Article 10 and another in relation to universities only—then that is at the heart of the problem in a thoroughly problematic Bill.
My Lords, I also apologise for not having participated at Second Reading. I have a perfectly excellent excuse: I was having knee surgery, which I am afraid has not worked out as well as I had hoped, so I will have to go back for some more. That is my reason for not having attended before.
I should disclose my interest in this Bill. In previous lives I was for nine years chairman of the LSE and for seven years, until last year, the master of Clare College, Cambridge. I am an honorary fellow at both places. I am currently president and a non-executive director of the University of Law.
Unlike some noble Lords who believe that there is no need for this Bill, I take the view that there would be great value if legislation was in place that enshrined the duties spelled out in Clauses 1 to 3. On the need for the statutory duties, I respectfully agree with the points the Minister made at Second Reading, especially when he listed numerous examples of recent behaviours that were designed to stifle freedom of lawful speech or had that effect. I completely agree. I take much the same position as the one advocated at Second Reading by the noble Lord, Lord Macdonald of River Glaven. There is a serious problem, but in key respects the Bill addresses it, though not necessarily in the best way and possibly in the wrong way.
As far as the matters that are being discussed are concerned, I will deal very briefly with one point. It has become apparent from a number of points that have been made thus far that there really should be a definition in the Bill, and ultimately in legislation, of freedom of speech within the law. At the moment, the Bill contains no definition provision at all. My view, for what it is worth, is that the definition put forward by the noble and learned Lord, Lord Hope of Craighead, is a perfectly excellent and workable suggestion.
I would not go so far as to say that I disagree with the proposal in Amendment 28 from the noble Lord, Lord Moylan, and others because at the moment I have not fathomed in my own mind the relationship between the noble and learned Lord’s proposal and the noble Lord’s. There may be some scope for a combination of the points made in both amendments—I do not know. If anything was to be added to the definition in the amendment from the noble Lord, Lord Moylan, I would be interested in seeing precisely what that was before coming to a final conclusion on the validity or worth of one amendment versus the other.
The one point that I would pick up on in relation to the amendment proposed by the noble Lord, Lord Moylan—the noble Baroness adverted to it moments ago—relates to the reference to “any confidentiality agreement”. In my view, that is far too wide. Non-disclosure agreements have developed a good deal of notoriety, especially over the last few years. If the non-disclosure agreement were to be used as a mechanism effectively for suppressing free speech—of course that is very often precisely why they are devised and forced on one side to sign up to—the reference to the confidentiality agreement proposed in Amendment 28 would not be acceptable.
There may be very good occasions when a confidentiality agreement needs to be properly respected and observed, when it is not being used for that offensive objective, to suppress free speech. There will be many circumstances, commercial as well as in a university environment, where the need for confidentiality is absolutely critical, but I would not agree simply to have a broad exclusion for confidentiality agreements.
My Lords, I wish to speak briefly in my own right, as opposed to speaking for my noble friend Lord Wallace, apart from one point about Amendment 1. The point of adding “within the law” is to fit with new Section A3, but that would be subsumed by the amendments in the name of the noble and learned Lord, Lord Hope of Craighead. The idea of defining freedom of speech is highly desirable, and that amendment appears to do the job.
I have some difficulties with Amendment 28, and it would be interesting to understand what the movers of that amendment mean in proposed new subsection (2). The relationships between this legislation and the Equality Act, and this legislation and other pieces of existing legislation, need to be thought about. I have some concerns about what the ramifications of proposed new subsection (2) would be.
My Lords, this has been a fascinating debate, and one we could continue for some time, because it is about trying to reach a consensus about concepts—I have my name down to Amendments 3, 11 and 30—but it is also about how we talk about free speech in universities and about academic freedom. There has been confusion in the debate about those two things. One of my amendments tries to say that we should not forget academic freedom and how important it is to university life, and asks about the constraints on it, which are not necessarily all the things that we have been talking about. In my experience, academic freedom can be constrained by economic factors and income streams that universities might have. Research can be restrained for those sorts of reasons, and academics who followed a particular route of research have been constrained by those other pressures.
The noble Lord, Lord Mann, is absolutely right. He and I have shared the same experience: political views can be unpopular, and some of the demonstrations that we have faced have been quite violent. The noble Lord, Lord Alton, has sadly left the Room, but we had a debate on Friday on his genocide Bill, as well as a debate on Thursday about Ugandan Asians. I remember standing up and defending the need to protect Ugandan Asians and facing a quite violent reaction from people. It was not limited to the streets; it was in other institutions, even in my own trade union and my own party.
As a lifelong trade unionist—I am not making a Second Reading speech, but talking specifically about my amendments—I have long experience of how politicians want laws to change culture, which is impossible. The most successful progress in industrial relations has been made not by legislation but by consensus, agreement and discussion.
My noble friend Lord Hunt of Kings Heath is absolutely right. There have been failures; the Kathleen Stock situation was a complete failure of leadership, in my opinion. Even though my noble friend and I have had disagreements about the actual issue, I do not have a problem in saying that we must stand up and say when management gets it wrong. They clearly did in that case. The failure of leadership is a key issue in terms of the definitions that will apply in this Bill.
We need to ensure that this Bill does not inhibit good practice when it becomes an Act. The danger is that some of the things in these clauses will. Universities UK issued a very clear statement on good practice that universities should follow, which I read this morning. It was a very clear statement about protecting and promoting free speech and academic freedom, and the obligation on universities to defend staff. I shall refer to one bit that struck me:
“Universities must also invest in good relations between different groups on campus, creating a climate in which all students and staff can discuss a range of topics—including the complex and controversial—in the knowledge that they will be listened to and treated with mutual dignity, tolerance, and civility.”
I do not think that this Bill will do that. What will is universities taking their responsibilities seriously, giving leadership and complying with the law.
One of my amendments specifically addresses academic freedom and goes into the issue of definition. My noble friend Lady Chakrabarti made a very strong case, and I agree with the noble and learned Lord, Lord Hope, that repeating the convention and Article 10 is a good thing. We are being very clear that the existing obligations on universities include Article 10. But what about academic freedom? This is not about just the right to free speech. What are the pressures on students and academics that could inhibit academic freedom? Hence, I have proposed the UNESCO definition, the internationally agreed definition of academic freedom, which covers the freedom of teaching and discussion, the freedom to research and publish the results, and the freedom for higher education teaching staff to express their opinion about the institution and system in which they work.
We have mentioned and will go on to discuss that insecurity in employment is often the biggest constraint on what academics can say at the moment, which is something that has changed a lot. The noble Baroness, Lady Bennett, said, and this came up in the Commons debate on academic freedom, that evidence was presented of some universities blocking research that they deemed too controversial. A lot of that is to do with the marketisation of the sector and the promotion of students as customers. I see no reason why the research interests of academics should not be protected under the definition of academic freedom.
Coming back to the point made by my noble friend and the noble and learned Lord, Lord Hope, we have mentioned before that a week is a long time in politics, so we may not know which Minister is responsible, but in the light of the Government’s stated desire to repeal the Human Rights Act there is no doubt that we need to reinforce the convention and Article 10. It is a really good point and therefore I support the noble and learned Lord’s amendment.
The most important thing about the Bill is that the scope of academic freedom needs to be as I suggest in the amendment and that we do not narrow it in the way that some noble Lords have suggested. That is why our amendment is vital.
I conclude with this point. Protecting academic freedom goes beyond partisan political lines. It provides a solid basis on which academics can feel secure enough to test and challenge the perceived wisdom. No matter how much we disagree on some of the issues—my noble friend Lord Hunt and I have disagreed on some of them—we are at one on protecting the principle of free speech and how we change the culture. As a trade unionist, I come back to that basic point. Codes of practice and understanding responsibilities are the most important things. I hope that, in our debates on the Bill as we go through each clause, we will have that uppermost in our minds.
My Lords, we have begun our debates in Grand Committee with a group of amendments all of which, in one way or another, address the main duties in the Bill relating to freedom of speech.
Amendment 1, introduced by the noble Baroness, Lady Smith of Newnham, would add the words “within the law” and is intended, as she explained, to ensure that the reference to the importance of freedom of speech in new Section A1 is identical to that within new Section A3. Let me straight away assure her that the speech protected by the Bill is only speech that is within the law.
The duty in new Section A1 to have particular regard to the importance of freedom of speech is part of the duty to take reasonably practicable steps to secure freedom of speech within the law. It emphasises the significance of freedom of speech as a concept and ideal, but a provider needs only to take reasonably practicable steps to secure freedom of speech if that speech is within the law. So the reference to freedom of speech within the context of the duty to have particular regard does not need the narrowing descriptor of “within the law”.
This is different from the duty in new Section A3, under which a provider must promote the importance of freedom of speech within the law. The duty to promote is about encouraging a culture of free and open discussion on campus. In this context, the importance of freedom of speech does need the narrowing descriptor of “within the law”.
Amendment 2 seeks to make clear in the Bill that freedom of speech in the Bill is an aspect of freedom of expression under Article 10 of the European Convention on Human Rights. I listened with great care to the noble and learned Lord, Lord Hope, and those who spoke in support of what he said. Amendments 3 and 28 also propose definitions of freedom of speech. Amendment 36 seeks to prevent freedom of speech being used as a defence against behaviour which amounts to harassment under the Equality Act.
Freedom of speech is a term that has been used in domestic legislation in a higher education context since the Education (No. 2) Act 1986. It is well understood in that context and there is no intention to change its meaning in this Bill. It is important to note, for example, that it covers both verbal speech and written material, including in electronic form. Accordingly, freedom of speech is a broad concept, and is indeed protected under Article 10 of the ECHR as an aspect of freedom of expression. It is worth adding that Article 10 includes the freedom to receive information from other people by, for example, being part of an audience or reading a magazine, which this Bill does not cover.
There is, in fact, already a non-exhaustive definition of freedom of speech in new Section A1(11), which provides that
“references to freedom of speech include the freedom to express ideas, beliefs and views without suffering adverse consequences”.
We did not consider it necessary to include in this definition a reference to Article 10. The Human Rights Act requires that, so far as possible, legislation
“must be read and given effect in a way which is compatible with”
the rights under the ECHR. We are clear that the Bill is entirely consistent with that requirement.
The activities mentioned in Amendment 3—teaching, researching, engaging in intellectual inquiry, contributing to public debate and criticising any institution—are all covered by the concept of free speech as just described. However, affiliation to an institution and being a member of a trade union body are not per se matters of speech and so are not covered by a Bill that is about speech.
As regards Holocaust denial, referred to in Amendments 3 and 28, let me make clear that 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 ECHR, as such speech is intolerable in a democratic society, and that Holocaust denial, even if dressed up as impartial historical research, must be seen as connoting an anti-democratic ideology and anti-Semitism.
There is no place in universities for extremist views that masquerade as facts but are in fact complete fiction and are deeply offensive. We certainly do not encourage higher education providers, constituent colleges or student unions to invite individuals who deny that the Holocaust ever happened to speak on campus. However, I should note that it is not the intention of the Bill to change what speech is held to be lawful or unlawful.
I turn to other aspects of my noble friend Lord Moylan’s amendment. It is not necessary to specify that speech that is unlawful, whether because it is in breach of a legal duty, a confidentiality agreement or intellectual property rights, is not included. Finally, on the element of Amendment 28 relating to the Equality Act, and also Amendment 36, it is important to note that, when considering a claim of harassment, courts and tribunals must balance competing rights on the facts of a particular case, which could include the rights of freedom of expression, as set out in Article 10 of the ECHR, and academic freedom, as set out in the Explanatory Notes to that Act. Guidance has specifically made clear that the harassment provisions cannot be used to undermine academic freedom.
Amendments 9, 10, 27 and 42 are designed to probe the meaning of “beliefs”. As I mentioned earlier, new Section A1(11) has a definition of freedom of speech which includes
“the freedom to express ideas, beliefs and views without suffering adverse consequences”.
This builds on the current wording of the Education (No. 2) Act 1986. It is vital that students, members, staff and visiting speakers can speak freely on campus about their beliefs, without damaging their prospects or suffering other repercussions. Beliefs are not the same as views.
In terms of the interaction of the Bill with other areas of law, the key point is that religion or belief is a protected characteristic under the Equality Act 2010. There is a test for what is a protected philosophical belief, but under the Bill the test is simply whether the speech is within the law, to ensure that there is freedom of speech on our campuses in the widest sense. I emphasise that the duty in the Bill to take reasonably practicable steps—
I am sorry to interrupt, but the Minister said a couple of times that subsection (11) is a definition of freedom of speech. I respectfully suggest that it is no such thing; it simply says that
“references to freedom of speech include the freedom to express ideas”,
and so on. It is not a definition at all. It merely gives an example of what freedom of speech would be. The point about the amendment tabled by the noble and learned Lord, Lord Hope, in particular is that it requires the introduction of a definition into the Bill, not simply the provision of an example of what freedom of speech might consist of. I suggest that a definition is essential, otherwise you will simply be scrabbling around to see what somebody thought freedom of speech might have meant in 1986. We have a perfectly excellent definition in the human rights legislation and the convention, and I am not quite sure why there is such a determination to avoid the obvious, so to speak.
I take the noble Lord’s point entirely. I think that I said that the definition I referred to was non-exhaustive. It is quite deliberately non-exhaustive, because it is a definition that we felt was appropriate for the purposes of the Bill. I suppose I could sum up the issue by saying that we believe there is a consistency between the Bill and the ECHR, even if there is not total congruency.
I emphasise that the duty in the Bill 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 certain action, it would not be reasonably practicable to override that.
Amendment 11 would provide that a non-disclosure agreement with a provider does not mean that members, staff, students or visiting speakers could not speak freely. There is an exception for intellectual property. I very much support the spirit of this amendment—in particular, victims of sexual misconduct and harassment should never be pressurised into keeping silent. The previous Minister for Higher Education, Michelle Donelan, strongly supported work in this area. She launched a voluntary pledge in January this year, in conjunction with Can’t Buy My Silence and universities, to encourage providers to commit not to using NDAs to silence victims of complaints of sexual harassment, abuse or misconduct, and other forms of harassment and bullying. To date, 74 higher education institutions and three Oxford colleges have signed up to this. The Government are working with Can’t Buy My Silence to call out those who have not yet done so.
Does the noble Earl not think that that is a good example of where good practice can be adopted not by legislation but by employers agreeing that something is not appropriate? Can he not proudly point to that as somewhere the Government have intervened and change has happened without the need for legislation?
We certainly hope that this will gain traction. I agree that in most circumstances it is better to encourage voluntary action, as long as it works. This is very much a work in progress.
We have also asked the Office for Students to create a new registration condition to ensure that it properly tackles sexual misconduct. This would have real teeth and would mean that providers could be sanctioned with penalties, suspension from the register or even deregistration. This follows the publication by the OfS of a statement of expectations for providers in this area.
I make the point that we are the first Government who are prepared to tackle this issue. I shall continue discussing with colleagues on both sides of the House how best we can tackle sexual harassment and misconduct in our universities. I therefore have no difficulty in committing to taking this matter away and looking at it further.
Does my noble friend wish to expand at all on my Amendment 13 about “reasonably practicable”? The essential point is that there is an existing duty in the 1986 Act that has two parts to it to take reasonably practicable steps to secure freedom of speech. If my noble friend’s position is that neither the definition of freedom of speech nor the definition of what is reasonably practicable is to be amended, why is he not frank in saying that there is no intention to change the current duty?
I apologise to the Committee. I know that I have been speaking for a long time, but this is the very issue that I was about to come on to next, if my noble friend will allow me.
Amendment 13, which is the amendment that my noble friend was referring to, seeks generally to strengthen the test for what is “reasonably practicable”. It would mean that, in relation to speech of a political, philosophical or academic nature, it would always be reasonably practicable not to interfere; in relation to other speech, it would be reasonably practicable only if taking that step would prejudice the functioning of the provider. I hope that I have paraphrased the issue correctly.
The Government’s position, supported by the OfS, is that we stand for the widest possible definition of free speech—anything within the law—and that, where debate is particularly contentious, it is all the more important that everyone feels able to put forward their views and arguments and be heard, on all sides.
The “reasonably practicable” wording of the main duty means that providers can take account of all their legal duties on a case-by-case basis. But I must be clear that my noble friend’s proposed strengthened test goes too far in not allowing providers to take account of all the relevant circumstances, including their other legal duties—for example, to prevent unlawful discrimination or harassment, or to comply with the Prevent duty so as to stop students and others being drawn into terrorism. There may be occasions where it is not reasonably practicable to secure freedom of speech of a political, philosophical or academic nature, even if that speech is lawful, and we must not impose a test that has so few exceptions.
If I might address the point made by the noble Lord, Lord Triesman, about conspiracy theories, the question of whether espousing a conspiracy theory is lawful depends on what is said. If it is defamatory, it would be unlawful. The point of the Bill is to take a wide approach to freedom of speech as a fundamental principle in a democratic society, but there is nothing in the Bill to encourage baseless or harmful claims, or bad science, on campus, for example.
Amendment 25 seeks to clarify the position regarding balancing the right to freedom of speech with the right to protest. The purpose of the Bill is to protect freedom of speech, but the right to peaceful protest is a fundamental tool of civic expression and will not be curtailed by this Government. Of course, it can itself be an aspect of freedom of speech. If there is a protest against a particular academic because they have said something controversial but lawful, providers will need to decide what reasonably practicable steps they can take to ensure that the academic can speak freely.
The intended effect of the Bill is not to prioritise one right under the ECHR—that is to say, freedom of expression under Article 10—over others, such as the right to protest under Article 11. The requirement to have “particular regard” to the importance of freedom of speech builds on existing provision under Section 43 of the Education (No. 2) Act 1986 and could, in a particular case, prompt a higher education provider to prioritise freedom of speech over another convention right. However, this would remain subject to its assessment of what is reasonably practicable and would need to be lawful.
It is worth noting that a provider’s code of practice under new Section A2 must include the procedures to be followed when organising meetings and activities, as well as the conduct required in connection with them. This will ensure that staff and students are aware of their responsibilities as regards their own conduct.
The noble Lord, Lord Hunt, suggested delaying Royal Assent to allow universities due time. Let me confirm to him now that implementation of the Bill will not be rushed. Various actions need to be taken before the new regime can come into force, including consultation with the sector and the provision of guidance, so providers, colleges and student unions will be fully engaged and able to understand their responsibilities under the Bill.
I turn next to Amendment 30 in the name of my noble friend Lord Sandhurst, which seeks to ensure that codes of practice have a process in place for dealing with meritless claims against staff and students. It is an important point that providers should not have to spend time and resources responding to frivolous or vexatious complaints. However, I should make it clear that the duties in the Bill are imposed on the governing body of registered higher education providers. There cannot be complaints made under the Bill about the freedom of speech duties against staff, members and students of the provider, or visiting speakers, as the amendment suggests. Higher education providers will in any case have their own procedures already in place for handling internal complaints. As for burdens on providers, unnecessary bureaucracy can take up time that could be spent focusing on the academic experience and high-quality teaching, but these measures are absolutely necessary to protect the core value of freedom of speech and we consider that the duties imposed are proportionate and appropriate.
I hope my remarks have provided noble Lords with reassurance about the Bill’s approach regarding the main duties set out in it and that they strike the right balance.
My Lords, clearly, I have not quite been mandated by my noble friend to accept the noble Earl’s answer, but, given his answer, I shall beg leave to withdraw Amendment 1 and I suspect it will not need to come back on Report. The clarification on the other amendments associated with belief were very helpful, but that might be an area where further amendments are brought on Report. I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Amendments 2 and 3 not moved.
4: Clause 1, page 1, leave out line 14
Member’s explanatory statement
This amendment is intended to probe the definition of “members” in this paragraph.
My Lords, again I am moving an amendment on behalf of my noble friend Lord Wallace. It might appear that he has been in a particularly frivolous mode in deleting the odd word. In this case, three of the amendments in the name of my noble friend, Amendments 4, 37 and 57, all suggest that we delete “member”. This is because the concept of “members of the provider” seems somewhat unclear.
I suspect I am not alone in being linked to Oxford or Cambridge colleges; we have heard from other noble Lords who are or have been. When people arrive at their Oxford or Cambridge college, they are often welcomed and told, “This is your college for life; you will always be a member”. Is this legislation really supposed to extend as far as people who have been undergraduates at certain institutions? One assumes not, but it is not entirely clear. Although it may not be necessary to delete “members of the provider” in new Section A1(2), it is highly important that we understand what it really means. It surely cannot mean anyone who has ever matriculated at an Oxbridge college, or perhaps attended other universities.
Two of the other amendments in this group go into much more detail looking at how we might understand to whom the Bill applies. In particular, Amendment 22 in the name of the noble Lord, Lord Triesman, picks up on a point that is clearly very important and was highlighted in the debate on the previous group by the noble Baroness, Lady Bennett of Manor Castle, and the noble Lord, Lord Collins: if we are looking at academic staff, it should not be only people who have tenure, permanent contracts or full-time jobs. It ought to apply to people who are part-time and those who have short-term contracts, and not even short-term contracts but ad hoc teaching. The amendment in the name of the noble Lord, Lord Triesman, is extremely important and very welcome, because if this legislation is to have value it absolutely should support people whose jobs may be somewhat precarious. People who feel that their jobs might be more on the line if they speak out of turn need to have their academic freedoms supported.
Amendment 26, in the names of the noble Lord, Lord Sandhurst, and others, perhaps goes too far. Here my noble friend Lord Wallace left me a message saying that people like him, as an emeritus academic, could cause really quite a lot of nuisance to their previous employers. I wonder how far the Government have explored what they really mean by “academic staff”. Clearly, people who have contracts of employment would fit within the Bill’s purview. To what extent might honorary or emeritus staff have a role?
I would be very interested to hear the views of the noble Lord, Lord Sandhurst, and others when they speak to Amendment 26. It will leave a large number of people within the Bill’s scope if we are really talking about all emeritus staff. There are cases in which people officially retire from their university jobs and then take on other contracts that mean they still have a role in their higher education institution. Those people rightly appear to fall within the Bill’s purview, but should people who have retired? This is not to say that their rights of freedom of speech or academic freedoms, if they are working within a higher education institution, should not be met, but how far are we going to go with the Bill and how far do the Government really intend it to go?
Please can we have some definitions of “member”? I beg to move.
My Lords, I will speak to my Amendment 22. One of the things that I have inevitably observed over a long period is that the proportion of the academic and academic-related staff who are on full-time contracts of the kind that we used to describe as tenured contracts has declined significantly. In some institutions it has declined almost to the point where they are a small minority. I do not agree with why that has happened, but I understand why it has. Generally speaking, it is quite difficult to get rid of people who are tenured, and if you are in economically straitened circumstances, you are probably looking for the least protection possible for some grades of staff.
But it is also true that the number and proportion of staff, and I make the point about both, who are no longer tenured but are absolutely vital parts of the academic community and are now on part-time, hourly and short-term contracts—a whole variety of contracts that do not conform to what we would have thought of as tenured staff—are increasingly women and members of ethnic minorities. There are all sorts of reasons why that is the case. For women, it is often said that, because their careers get interrupted for various reasons, it is easier to deal with them if they are not in a tenured position. For example, you do not have to replace them for maternity leave purposes. This has had a detrimental effect on the security of employment that is also discriminatory.
I will make two points that I hope the Grand Committee will feel are not in any sense unhelpful. First, if we want to ensure that the whole of the academic community buys in effectively to these concepts and the Bill’s key propositions—I share with my noble friend Lord Hunt and many others who have spoken the belief that this is probably not the right way of going about it, but none the less we are going about it so I am going to do my best with what we have—then we need to make sure that universities understand that it means the whole of the community. I regret to say that many universities tend to think of the academic community as being the tenured staff; I fear that that is probably also true of some Cambridge and Oxford colleges, having known those colleges myself over the years. They have much less regard for whether other aspects of academic life apply to all the other academics. I am not even being particularly critical of that; I am just saying that it is one of the ways that the sector has evolved.
Secondly, as I have said, this has had a discriminatory effect. When we talk about the academic community, it would be very easy to say that we do not have exceptions in mind. As the noble Baroness, Lady Smith, said just a few moments ago, we mean the whole thing, because we intend that the Bill’s impact should be on the whole of that community who are employed as academics, irrespective of the character of the contract they hold. I do not even believe that it would have any difficulty embodied in it for contractual or other purposes; it would simply be everybody who is employed to teach or research. I include in that “academic-related”, because, rather like the librarians in your Lordships’ House, there are a number of people who do background research that is fundamental to the academic conduct of an institution.
I commend this amendment without embarrassment, because either the Bill means what it says or it means it for only some people.
My Lords, I will address Amendment 26 and the consequential Amendment 71, which we need not look at. Amendment 26 effectively aims at much the same target as the noble Lord, Lord Triesman. It may be that the definition is different and it may be that we can discuss this, but the point is exactly the same: it is to include the whole of the academic community in the university. We must get these words right. If there is a practical difficulty with the use of “emeritus”, for example, we can look at it.
What is really necessary is that “academic staff” is made clear in the Bill and that it covers the range of people who are most vulnerable. The most vulnerable are not those on full-time contracts; they are the doctoral students, other teaching staff and researchers, and those on part-time or less secure contracts. It is vital that, if they are pushing forward ideas that happen to be unpopular in their particular community, but are legitimately doing their job well, they are not dismissed or otherwise penalised for holding those views and expressing them.
Amendment 26 was tabled at Report in the Commons, and on 13 June, the Universities Minister offered the following clarification:
“To clarify, the Bill uses the term “staff” to broaden the existing reference to employees, as not all those who work for a higher education provider have an employment contract or employee status. I can confirm that it will include those on short-term, casual contracts and PhD students undertaking teaching.”—[Official Report, Commons, 13/6/22; col. 72.]
I suggest that my amendment would go a little further and make it absolutely clear that it encompasses all those who will need protection.
My Lords, much has been said that I agree with. I shall speak to Amendment 26, to which I put my name. As people have been declaring their interests, I should say that I have never run an Oxford college and am never likely to, but in the Academy of Ideas, I have been working with students for a long time on the issues of free speech and academic freedom—that is the kind of work I do—and a number of those students go on to become young academics. I fully support the broadening out of what we mean by academics, because sometimes it means the seasoned prof rather than the broader community of the academy.
The recent report of the Policy Institute at King’s College London said that 41% of students agreed that academics who teach material that offends students should be fired. That is extraordinary, if you think about it: they think that they should be sacked if they teach the wrong things. I do not suggest that those students cannot be won round or that those academics will all be fired, but that is the kind of climate we are talking about. There is an institutionalised acceptance of this—which, by the way, I think is partly due to the students-as-consumer atmosphere, and the managerialism and commercialisation of universities. It is a bit like saying, “I don’t like what you teach, I find that offensive; you should be sacked.” That is one explanation of why nearly 36% say that they are self-censoring.
When I have talked to young academics, I have found that they are the ones who feel that they cannot speak out, and that they are looking over their shoulder all the time. A number of older professors who are prepared to speak out say, “Well, what can they do to me, I am about to be emeritus?” But even then they do not speak out because they say, “I don’t want my reputation to be sullied, to be slandered or to be called a bigot.” If you are trying to get research grants, or get on the ladder of work and so on, you are going to be wary.
The other thing that is very important here is that I would have said in the past that we could maybe rely on those young academics turning to their trade unions, but we should notice something extraordinary that has happened. When the Times reported in August that members of the University and College Union were compiling a list of university backroom staff that they suspected of holding gender-critical beliefs, creating a kind of blacklist of their trans-sceptical colleagues, you thought it was no wonder that people self-censor. A lot of this is about the backroom staff. It is things we are not seeing. As it happens, this seems to be true of all institutions at the moment, with these kinds of blacklists of junior staff existing.
I was genuinely shocked in the cases of Kathleen Stock and Jo Phoenix, who are more experienced academics, when their own union branches sided with the people who were calling for them to be driven out of their jobs. As somebody who spent a long time as a trade union rep in what was then NATFHE, I am shocked by that turn of events. I am pleased that the Free Speech Union exists, but this is about a recognition in the Bill that workers’ rights need to be protected across the board. If the Bill can do something to make that clear, that would give some comfort—even though I want the trade unions to start fighting for their members, as a better remedy.
My Lords, I thought it axiomatic that references to academic staff in the Bill included all academic postholders, whether tenured or on short-term contracts. I had assumed that they were included. It would be very useful if the Minister could confirm that, because there is no doubt that academics who are working on short-term contracts are more vulnerable in this field than others. I myself had the experience of speaking to young academics—junior research fellows and so on—in that situation, who are a little nervous about expressing views which are, if I can put it this way, outside the cultural mainstream. They need particular protection in this area, so I would be grateful if the Minister could confirm that “academic staff” includes those on short-term contracts as well as those enjoying tenure.
My Lords, is this not another example of why it would be helpful to have a definition provision in the Bill? If there was one, “academic staff” and “members” could be defined, and there would not be any debate about who did or did not fall into one or other of these categories.
In this context, it is worth bearing in mind another point. All universities, as institutions, will have either statutes—as in Cambridge, Oxford and some other universities, such as Durham—or their own constitution. You would glean from the constitutional documents of the institution who is a member of the academic staff and who is a member. We are a bit in the blind here, because in order to determine whether person X is a member of the academic staff or person Y a member of some institutional college, you will have to look at the constitutional documents of the organisation to find the answer. It would be quite helpful to have it in the Bill as well, so that there could not be any misunderstanding. Also, we could end up protecting through the Bill people who, strictly speaking, might not fall within the relevant definition of a particular institution. In that sense, the Bill could improve the position of individuals who are, to use a loose expression, associated sufficiently with the world of academia and who are deserving of cover here.
For example, there is a big difference in Cambridge. Once you are a student in a college, you are a member of that college for life. That may not be true in other universities—I do not know. For example, it probably was not true at the LSE; I do not remember. It is certainly true of any college in Oxford and Cambridge, so it is a bit unsatisfactory not to have a sufficiently clear definition applicable to everybody.
My Lords, picking up that last point, I support the amendments in this group that expand the definition of what constitutes an academic, but I wonder whether the Minister in his response can provide reassurance on the interaction between the academic freedom requirements of the Bill and the ability of universities to ensure high academic standards. Most of the amendments before us relate to the question of what constitutes freedom of speech, rather than academic freedom per se. I think the Minister said a moment ago that nothing in the Bill prevents bad science on campus. The corollary of that should be that nothing in the Bill should prevent universities preventing bad science on campus.
We cannot have a situation in which the academic freedom protections are used to allow those who do not believe that smoking causes cancer to continue at a medical school or those who believe in creationism to lecture in the physics faculty rather than the theology faculty, to cite a well-known example. Indeed, the University of Manchester had the discretion to take action against its PhD student who, noble Lords may have observed, is pursuing a thesis on paedophile masturbation, which is deemed not to meet sufficient academic standards. Yet under the definition of academic freedom here, those views could affect the likelihood of that person’s promotion or securing different jobs at the provider.
My Lords, if a science department employs people who do not believe in science, that does not seem to me to be a free speech issue. Even with the PhD thing, they can have those views in the bar and nobody will care, right? It is about what they teach. I am not suggesting that people should be able to carry on doing their job if they are not able to do their job, but they should probably never have been employed or signed up for the PhD in the first instance.
The noble Baroness is making precisely the point I was seeking to draw out. As we discussed at Second Reading, freedom of speech is not the same as academic freedom. We need to make sure that, in protecting both appropriately, we do not stand in the way of the kind of management action that it would be reasonable for universities to take. In a nutshell, we are saying that universities are not a single space. There is a space for freedom of speech, particularly in respect of students, but the classroom is a place for verified expertise. Perhaps in his response the Minister can give us the assurance that nothing in the Bill will stand in the way of universities continuing to exercise that function.
My Lords, first I need to apologise—I forgot to declare my interests in the debate on the previous group. I refer to my academic interests as set out in the register. I also forgot to thank the Minister and his colleagues for the meeting they had with many of us last week, which I for one found very helpful in trying to unpack such a complex area.
This is a vital group of amendments in probing the class of people protected by the new duty, which dovetails with what will come later—the new statutory tort. I suspect that, in replying, the Minister will try to give comfort that the class defined in new Section A1(2) is intended to be a very wide class and to cover tenured and non-tenured academic staff, postgraduate teaching students, et cetera. I am instinctively for that.
I would even go further and say that universities are vital centres of the communities in which they are situated. They have a wonderful economic and cultural impact in the towns, cities and rural areas where they exist. One of the many things that they contribute is public lectures and meetings, where people who have never even attended university themselves get the opportunity to come and hear from world-class academics and other speakers. That is all wonderful, but it creates challenges in relation to these very divided times we live in.
One of the smaller questions that I put to the noble Earl’s team last week—for me, this is a grey area; I am not an expert in education law—is the relationship between subsections (2) and (3) and whether there is potentially an even wider group of people who may be protected and therefore have the benefit of the statutory duty. To be clear, and to go back to my comments in the first group, I want freedom of expression to be protected for the broadest group of people in our society, subject to the caveats and balancing exercises in Article 10. If a member of the public comes to a public lecture, I do not want them to be unnecessarily censored, manhandled or thrown out just for having a different point of view, even though they are not a member, staff member or student of the university. I am confident that that is properly protected by Article 10. The beauty of Article 10 is that it does not really invite lots of financial damages and therefore does not cause too much of a nightmare for the university. However, now we are talking about a statutory tort and pecuniary damages, so we have to be a little bit careful about whether the point in subsection (3) about
“securing that … the use of any premises … is not denied to any individual or body”
is not too broad in relation to bodies which are not even constituent parts of the university.
I know that the noble Earl’s team have views about that, and I certainly believe that the Government’s intention is that only the people covered by new Section A1(2) get access to the statutory duty. Subsection (3) is not intended by the Government to throw the statutory duty wide open to anybody who is thrown out of a meeting for heckling, et cetera; but I urge caution, because this clause will be read expansively, not least because of the duty in Section 3 of the Human Rights Act to which the noble Earl referred in his earlier remarks. Maybe he will have something to say about that.
Even if every heckler who is ultimately thrown out will not be protected, because subsection (3) is not intended to expand upon subsections (2)(a) to (2)(d), we have quite an issue—that is, quite an expansive category of beneficiaries under “visiting speakers”. I am absolutely clear that to make sense, “visiting speakers” here must mean putative visiting speakers, otherwise there is no point to this paragraph. So many of the stories noble Lords have complained about are about people who could have come, would have come, were invited, were nearly invited but were never quite invited because of the atmosphere there, or were denied. So, I am quite clear in my own mind that in subsection (2)(d), “visiting speakers”, must and will include—and will be found by a court to include—potential, putative speakers.
I put the scenario to the noble Earl last week of the meeting that takes place to discuss the speaking programme. A controversial name is mentioned, and the decision is ultimately made that that person is not to be invited because of fear of controversy. People are tweeting after the meeting, because that is what people on Twitter do—I am not in that category—and we now have potential litigation from the putative speaker, whatever level of controversy they excite.
Finally, I want to respond to the noble Lord, Lord Stevens, because, notwithstanding the comfort offered by the noble Baroness, Lady Fox of Buckley, I think he has a point. The interaction between the provisions in the Bill as drafted and the quality of research and expression of research has not been adequately considered. As I read the Bill, the academic who is put under pressure for the quality of their science being inadequate or anti-science will now have access to the new statutory tort. Of course, if they lose their job, that is a real loss. That problem will not be solved even by the proposition of the noble and learned Lord, Lord Etherton, about pecuniary loss because, by definition, the academic who was putting out bad science or non-science and was not standing up to refereed scrutiny will have pecuniary loss and is going to say, “I deny the climate catastrophe”, or “I deny any human contribution to the climate catastrophe”, or “I deny that tobacco has any effect at all on cancer, and that is my belief, that is my freedom of speech, I am a member of this university, you have put me out of a job and I am suing.” I do not see anything in the Bill that helps potentially beleaguered universities with that challenge.
My Lords, this is a very important small group of amendments. It seems to me that the previous group was about what the law should say, while this debate has been about is who it is going to apply to. I was struck by my noble friend Lady Chakrabarti’s description of the academic who might suffer. I was thinking back and remembering, and I need to say that I am an emeritus governor of the LSE, but I think I am absolutely not a member of the academic staff there. When I was at the LSE, I attended a whole year of lectures and I fell asleep at every single one, but I do not think that counts with this.
I think the noble Lord, Lord Wallace, has been very clever in these two groups; his small amendments are exactly how you probe a Bill. I am full of admiration for his ability to do that, and I am grateful. The issue here has been mentioned by most noble Lords, because it is vital in legislation that we define who will be affected by the legislation and in what way. That is why my noble friend Lord Collins added his name to Amendment 26 in the name of the noble Lord, Lord Sandhurst. My noble friend Lord Triesman made some very good points, as did the noble Lord, Lord Stevens, and others. I think the Minister will need to continue the discussion on this because by now the Bill team and the Minister will realise that there is a lack of clarity here, which provides enormous risks to the effectiveness of this legislation.
My Lords, this second group of amendments relates to members and academics, as covered by the Bill, but I will also try to address the questions put to me on related issues.
Amendments 4, 37 and 57 in the name of the noble Lord, Lord Wallace, and spoken to by the noble Baroness, Lady Smith, seek to probe the meaning of the term “members” in the Bill. The term “member” in the sphere of higher education has a specific meaning as a term of art. It includes in particular a member of the governing council of a university and those with certain honorary positions, such as an emeritus professor. Such a person may not be a member of staff of the institution and so needs specific provision in order to be protected under the Bill.
A member does not include a person who simply studies or used to study at the university, though some might use the term in that way. Current students would be covered by the term “students”. It also does not include a recipient of an honorary degree, which is awarded to honour an individual and does not give any academic or professional privilege.
The term “member” is well understood in both legislation and universities. In particular, it is already a category of individuals which is protected under the Education (No. 2) Act 1986, which sets out the current freedom of speech duties.
It appears, according to Clause 2, that colleges are constituent parts of universities and are therefore brought into this Bill. Given that Oxbridge colleges refer to people as members, would it be possible for the noble Earl to think about further clarification? While I understand the general point that “members” might have a clear definition, it is not clear in the Bill as currently framed.
I would be grateful for that letter as well. I suggest to the noble Earl that one of my experiences of these colleges is that they do not go back and read anything much later than 1650—I do not mean pm—and they probably do not care. If it is has to be clarified, it is much better that it is clarified.
I am grateful to the noble Lord. I wanted just to cover another question that the noble Baroness put to me about retired professors. If a retired professor is an emeritus professor, they are protected by the Bill as a member. This is important if they still have a role in the university. If they have no such role, then in practice the provider will not have to take steps to secure their freedom of speech since they will not be speaking on campus or taking part in university life.
I turn to Amendments 22, 26 and 71, which seek to define academic staff for the purpose of the Bill. We have used the term “staff” to broaden the existing reference to “employees” in the Education (No. 2) Act 1986, as not all those who work at a provider have an employment contract or employee status. This term is already used in the current definition of academic freedom in the Higher Education and Research Act 2017 so is an understood term in this context.
“Staff” includes academics who hold honorary appointments for which they are not paid, for example honorary fellows. PhD students will be considered to be academic staff, for example, in so far as they teach undergraduate students. It will be a question of fact in each case whether they are covered as staff or students. The term covers staff at all levels, whether or not they are full time or part time, permanent or temporary. Visiting staff who are perhaps working at the university for a year are also covered. They must be distinguished from visiting speakers who are academics working at another institution, who are covered by the Bill as visiting speakers, rather than as staff of the provider.
I listened with care to the noble Lord, Lord Stevens of Birmingham, and his question about the way in which academic freedom interacts with academic standards. I said earlier that there is nothing in the Bill to encourage baseless or harmful claims or bad science on campus, but it is important to recognise that a provider in this context is an employer, and that its staff will have signed an employment contract and be subject to its employment policies.
Under the Bill as currently worded, would the emeritus professor at Sussex University—who was not an employee but would have been covered—who was sacked four years ago for saying that 9/11 was an Israeli plot have had the option of suing the university?
I do not think it is for the Bill—or indeed the Government—to specify an answer to that question one way or the other. It would depend on the policy of the university as to whether it wished to still regard that person as an emeritus professor if it took exception to what he said. I think that is as far as I can go at the moment, but I am happy to write to the noble Lord, Lord Mann—
I was making the point that a provider in this context is an employer and that its staff will be subject to its employment policies. Those policies must, of course, take account of the high regard that academic freedom is held in. However, depending on the circumstances, a provider may need to consider factors such as whether it is appropriate for the academic to continue to teach students; whether the academic has met accepted academic standards for their speech; and the ability of the academic to properly represent the provider in terms of its values and the reputation of the department and the provider.
The Bill recognises the nuances of the potentially difficult decisions that will need to be made under it. The “reasonably practicable” test allows for case-by-case decisions to be made, taking account of all the relevant factors.
Does the noble Earl nevertheless recognise that this is one of the weaknesses in the Bill that is causing consternation in universities: that it appears on the face of it to provide what I might describe as malignant actors—the sort of individuals the noble Lord has just referred to—with several new avenues to cause disruption, difficulties and problems for universities, including potentially launching a specific new tort? Is it not a weakness in the Bill that universities are likely to be subject to malignant activity?
With great respect to the noble Lord, I challenge any university to point to a provision in the Bill that changes the duties and responsibilities it has at the moment to take decisions for itself about what constitutes malignant speech, unsound science or whatever it happens to be. The Government are not trying to interfere in any way with the autonomy of universities in that sense.
I am really quite surprised, because I hoped that the noble Earl was going to respond to my question, which was based on the question from the noble Lord, Lord Stevens, with some magic provision in the Bill or in the parent 1986 Act—if I can put it like that—which ensures that academic standards are specifically protected and held in the balance with the vital freedom of speech. If that is not the case we really do have a problem, because we then have the potential for one of the scientists I described in my hypothetical to sue under the new tort on the basis that they are being dismissed because of their speech and beliefs. The university will say, “No, it’s because of your bad science”, but they could say, “No, it’s because of my speech and beliefs”, and then the university would face costly, lengthy litigation.
We always have to come back to what the Bill specifies that a university should do, which is to take reasonably practicable steps. That is governed by the circumstances and facts of the case, which the university will have to weigh up: the pros and the cons, the arguments on either side. That is nothing different from what they do at the moment. In a later group, the ninth, I think, we shall come to the issue of tort and, if the noble Baroness will forgive me, I will not cover that now, but I shall cover the questions that she asked me about who exactly we are referring to in subsections (2) and (3) of proposed new Section A1.
Those protected under proposed new Section A1 are only those categories of individuals mentioned in subsection (2). The objective of the duty is to secure freedom of speech for those persons. That is done, in particular, by securing the matters referred to in subsection (3), which includes securing that the use of premises is not denied to any individual or body on certain grounds. What is said in subsection (3) is a way of securing freedom of speech for the persons mentioned in subsection (2), not for any individual or body, as referred to in subsection (3).
The noble Baroness asked me about visiting speakers. “Visiting speaker” is a term already used in the Education (No. 2) Act 1986. It is not defined, so it has its normal meaning in English. We are using the same term and not changing its meaning, which providers have understood for 35 years. We are clear that it is not anyone who wants to speak, and there is no right to a platform. Someone who is not invited or even contacted would, on the normal construction of the words, not be considered to be a visiting speaker. We should note that a person is eligible to complain to the OfS if they were or were at any time invited to be a visiting speaker —paragraph 1 of Schedule 6A makes that clear.
It is vital that members, as a group of senior and respected individuals closely involved in university life, should be protected under the Bill so that they are able to talk about academic and other matters without fear of repercussion, just as academic stuff are protected, as I have just outlined.
I think that, although I shall withdraw this amendment, we are likely to have a form of amendment coming back at Report, unless the Minister manages to pull some sort of rabbit of the hat defining members and other things in a clearer way than is currently in the Bill. But with what, I beg leave to withdraw the amendment.
Amendment 4 withdrawn.
5: Clause 1, page 1, line 17, leave out “securing that” and insert “not denying”
The noble Lord, Lord Willetts, sends his apologies for an unforeseen family emergency, so I will formally move Amendment 5 and speak to Amendments 7, 8 and 38 to 41.
Given that these originate with the noble Lord, Lord Willetts, noble Lords can be assured that they are pragmatic and constructive amendments that will not necessarily detain the Committee for terribly long. Their aim is simply to make clear that universities should be allowed to move events around the campus without cancelling them, on the grounds that it should be reasonable to move a controversial and possibly noisy event so that it does not occur, for example, next to an exam hall at exam time. It is reasonable to move an event so that it happens on a part of the campus that makes event management easier or so that it does not conflict with other events at the same time.
Some people may argue that these flexibilities might mean the surreptitious or indirect cancelling of events, but other parts of the Bill address this concern. Indeed, to pick up the point that the noble Baroness, Lady Chakrabarti, made earlier, in fact they may make it easier to invite people and expand the number of speakers invited to campus, knowing that these flexibilities exist. Per the rest of the Bill, universities and student unions would remain liable to sanction if they had in fact cancelled an event, not merely moved it, and the Office for Students would be able to respond to a complaint.
In a nutshell, these practical amendments that we hope the Government might consider as the Bill progresses would simply provide sensible if narrow discretion to universities and student unions to decide where and when events happen.
My Lords, my Amendment 6 is on the same principle: unintended consequences. The Government would be very foolish not to listen in and to amend the Bill accordingly.
When I was a student leader, I had a range of tactics. With this Bill, I could put those tactics into play very easily. At the moment I go around a huge number of universities in another role; I was at one this morning. A week ago I was at a very prestigious one, in the vice-chancellor’s office. I did a recce in preparation and spotted a meeting room. If I was at that university, or knew someone in a society at that university—such as, let us say, the anarchist society—I would get invited there and, if I wanted to be disruptive, have a rolling meeting. The meeting would simply continue and continue. Some activists and campaigners would do that. They may not glue themselves to the door, because that would be criminal damage and they would be removed, but it would be possible to keep a rolling meeting going. I can recall one that was kept going for six weeks, not in the vice-chancellor’s office but in the registrar’s office. That is possible. I suggest that that would be an unintended consequence of this.
There are also groups that could get themselves invited in with the sole aim of maximising disruption, in order that they get their meeting broken up—in essence, they get thrown out—and then they can sue. This would be, by definition, extremist groups on the fringes. That would be, and has been in the past, a tactic employed. There was a whole period of time when various extremist activists were trying to do this. With this Bill, they would have a perfect opportunity. So this small tweak, giving that flexibility to a university, would have a profound impact.
There is one other good reason. If one wanted to be politically aggressive, when booking a room one could insist that an anti-Israel meeting, to use one example, was located in a room next to a synagogue or the Jewish chaplaincy. That would seem egregious to me. It could be—this happens a lot in the United States at the moment—directly in and among the Jewish student accommodation, the Hillel accommodation, which would be more than egregious. To give universities the flexibility for that bit of common sense, which they apply routinely in these isolated examples, would be a way of stopping those unintended consequences and would help the Government in their objective and their free speech proposals.
My Lords, I support Amendments 5 to 7 in particular. I shall follow on from the comments of the noble Lord, Lord Mann, because I had similar concerns about unintended consequences. I wonder whether your Lordships would mind me sharing some rambling thoughts that have come through my mind. I was not going to, but the reference by the noble Lord, Lord Triesman, to nothing before 1680—I think it was 1680—strengthened me.
In many countries in Europe, today is Reformation Day. I happened to be in Dresden yesterday, where you cannot help but see the statue of Martin Luther, which I was admiring. That is not irrelevant to these discussions. The history of academic freedom in Europe—freedom of expression and of religion—will have different views about the Reformation, but I cannot help celebrating the fact that, 500 years later, the Roman Catholic Church and the Lutheran World Federation said that they agreed over the doctrine of justification by faith, which was the great thing that divided the Churches at that time. As this fascinating debate has continued, I could not help thinking that, if there had not been a suppression of academic freedom at the time, there may not have been that great bust-up, which caused a lot of tearing to society and Church. I simply share that to reinforce that which we are all committed to—academic freedom and freedom of speech—and to recognise that institutions did not always get it right. Certainly, the Church has not.
I have quite a lot of sympathy for what the Bill is trying to achieve and welcome these amendments. The flexibility that they suggest would be very helpful. They work with the grain of the Bill in trying to encourage and enable robust and vigorous discussion and debate, and there are some sensible proposals.
My concern, perhaps slightly similar to that of the noble Lord, Lord Mann, was that an unintended consequence could be that spaces designated for pastoral, religious and spiritual needs might find themselves appropriated by bodies that would be offensive to those. I do not imagine that that was necessarily a concern of the noble Lords, Lord Willetts or Lord Stevens. I am really grateful to the Minister and his team for the discussions that I have had with him, particularly those assurances that I have been given that taking such steps as are “reasonably practicable” requires a careful consideration of how other legislation applies here, such as the public sector equality duty or the Prevent legislation. I would be very grateful for any further assurances that the Minister felt able to give.
I welcome that the amendments would provide the flexibility to help providers know that they were not cancelling a particular body because of its beliefs, even though they might be offensive to a particular body, but rather providing another space. I would also be very interested to hear any further assurances the Minister might be able to give on how guidance to the Office for Students on navigating some of these matters might be best given, and what other wisdom or what other bodies might help to advise on that.
My Lords, on the point we have just been discussing, is this not a very good example of the kind of matter that could be very conveniently addressed in a code of practice? If the position is that some obviously controversial matter or speaker, whatever it may be, is in the first instance being located in an inappropriate place, this is a very good example of how that could be dealt with in a code of practice. We do not actually need primary legislation for this purpose.
My Lords, I shall speak to yet another amendment from my noble friend Lord Wallace of Saltaire. I was reminded by the comments of the right reverend Prelate that I speak as a Catholic, so I am very glad that academic freedom has actually extended to Catholics: we were eventually emancipated and are now able fully to participate.
Amendment 24, from my noble friend and the noble Baroness, Lady Bennett of Manor Castle, is slightly different from the other amendments in the group. It would omit lines 30 to lines 34 on page 2. Again, it is a probing amendment to do with the costs that might fall on the provider. At present, the Bill says that
“the governing body of a registered higher education provider must secure that, apart from in exceptional circumstances, use of its premises by any individual or body is not on terms that require the individual or body to bear some or all of the costs of security relating to their use of the premises.”
How far are universities or, indeed, student unions expected to cover the cost of security? Do the Government think there is a limit to those costs? How do they view “exceptional circumstances”? Some clarification is needed on the expectations here, because although moving venues might be relatively straightforward and incur but a small cost for the education providers, providing security could prove prohibitive, certainly for student bodies. That then raises the question: if we are trying to enhance academic freedom but are then imposing costs on the providers, is there not a tension there? Have the Government thought this through?
My Lords, it is a pleasure to follow the noble Baroness, Lady Smith, very briefly, and to speak to Amendment 24 in the name of the noble Lord, Lord Wallace, to which, as the noble Baroness noted, I attached my name. I guess this comes from personal experience, because as leader of the Green Party I only once had security guards shadowing my every move. That was at the 2015 general election on a visit to Exeter University. Our very new, very young Young Greens were suddenly told that they had to arrange security and had to find the money to do so. I think the reason may have had something more to do with the fact that, the previous week, Nigel Farage had visited the university under the same circumstances and the university felt that it had to apply the same rules to both. That is how the situation arose, but I am none the less acutely aware that that was a considerable impediment.
If the cost of security is laid on student bodies particularly, that may stop an event going forward. However, I admit some sympathy also with the earlier intervention in this group asking whether this is really the sort of level of detail the House of Lords should be debating, which goes back to the whole question about the Bill.
My Lords, I welcome these amendments, because they probe the practical implications of these clauses. The noble Lord, Lord Grabiner, raised the point about the code of practice, and I was going to ask the Minister exactly how the code of practice in new Section A2 would cover the circumstances in relation to these amendments.
At the end of the day, as the noble Lord, Lord Mann, says, organising meetings has all kinds of implications for universities and colleges. Health and safety is a critical issue for the organisation of meetings, and the timing of meetings has employment issues, relating to staff and things like that. There is a whole range of practical issues that could result in having to say to the organisers of a meeting that they cannot have their meeting on that day or in that place.
The Minister may say that the code of practice referred to in new Section A2 talks about the procedures to be followed in connection with the organisation of meetings to be held on the provider’s premises. I want to know about the status of the code of practice and how the office of free speech will look at it. Are we going to end up with universities producing a code which fits all their requirements—health and safety requirements, employment law conditions, staffing issues, security issues and so on—then being tied up with people challenging it through the complaints process, saying, “They said that thing about health and safety as an excuse to ban us having a meeting on the premises.” I have heard it before. I have heard people say, “What has health and safety got to do with it?” or “Why should a maintenance staff member tell us to get out at 8 o’clock when I want to continue this speech and have this meeting?” There are practical implications.
How does a university know that the code of practice it adopts according to new Section A2 will meet the requirements? Will draft codes be circulated? What sort of advice and guidance will universities get—or are the Government simply going to say that this is all about what is reasonably practicable? I have heard those words many times in different contexts, particularly in terms of employment law and conditions. I hope that the Minister can reassure us on these probing amendments. Universities are independent bodies and should be able to manage their own organisation without the interference of outside bodies. I think this is a step too far.
My Lords, the group of amendments to Clauses 1 and 3 tabled in the name of my noble friend Lord Willetts and spoken to by the noble Lord, Lord Stevens, seek to give higher education providers and student unions the flexibility to move events to alternative premises but not cancel them. The noble Lord, Lord Mann, has also tabled Amendment 6 to the provisions concerning premises.
Under the Bill as drafted, providers, colleges and student unions will already be free to move events to alternative rooms, should that be appropriate. The main duty of taking reasonably practicable steps to secure freedom of speech is linked to the provisions that are the subject of these amendments—those in proposed new Section A1(3). This means that the duty is to take reasonably practicable steps to secure that the use of premises, and the terms on which such use is offered, are not based on the ideas, beliefs or views of individuals or groups. The duty to take reasonably practicable steps therefore means that there is already flexibility.
In any event, a provider, college or students’ union is not required under the Bill to allow the use of their premises at all times and in an unlimited way. It is open to them to offer particular rooms for use by event organisers at specified times. As regards Amendment 6, Section A1(3)(a) refers to “any premises” but could refer to “premises” without changing the effect. It should also be noted that the relevant body can place conditions on the use of rooms.
In this context, it might be helpful to touch specifically on the point raised at Second Reading by the right reverend Prelate the Bishop of Coventry regarding concerns about the use of faith spaces. I was very happy to meet him some days ago to discuss this. The example given by the noble Lord, Lord Mann, of having an anti-Israel talk right next to Jewish premises, touches on a similar point. Sections A1(3) and (4) on the use of premises essentially replicate the wording of the Education (No. 2) Act 1986, referring to beliefs among other things in that context. As I said earlier, the provisions link back to the main reasonably practicable duty in subsection (1), so it is not an absolute requirement. I think that was an initial cause for concern on this point, so I am happy to clarify that. In fact, the “reasonably practicable” steps wording enables providers to continue to designate spaces for use by faith groups without any obligation for the provider to open those spaces up to other groups, whether or not they have conflicting ideologies.
Under the reasonably practicable steps duty, it would be legitimate for a provider not to offer a particular faith space to any group that wants to hold an event, but to offer another suitable space, thereby upholding the freedom of speech duties and preserving the integrity of the space set aside for the faith group. The legislation enables providers to respect the religious views of those with designated rooms, taking into account the duties under the Equality Act, while still complying with the freedom of speech duties. To pick up a point made by the noble Lord, Lord Grabiner, we anticipate that the Office for Students will publish guidance for providers on how to comply with the duties. We can certainly discuss this with the Office for Students to ensure that it covers this issue, which I hope will provide noble Lords with further reassurance.
I just say to the noble Lord, Lord Collins, that providers are already required under the Education (No. 2) Act 1986 to have a code of practice regarding freedom of speech. The Bill strengthens that requirement. Providers will now need to include a statement of values in their codes of practice that clearly sets out the importance of freedom of speech. Providers should be setting the tone and expectations campus-wide so that everyone is confident to express their lawful views and challenge received wisdom, even if their views are unpopular. Codes of practice will also need to set out the criteria that providers will use to make decisions about the use of their premises for events involving potentially controversial views, as well add the criteria for when exceptional circumstances may apply regarding the payment of security costs. The Bill strengthens the duty on providers already set out in the Education Act 1994 so that all students, not just those who are members of student unions, are made aware of the duties and the code. Once again, the Office for Students will give guidance on this.
I want to go back to the noble Earl’s point on security costs. I would like to understand a little more what that might involve. My own experience, probably not wholly appropriate, comes from football. Inside many football stadia, including quite small ones, the clubs provide stewards. Sometimes, certainly outside, the police provide security, and sometimes, if it is called for, they also provide it inside. There is a huge argument about who should bear the cost of the police providing security, since it has an often quite considerable impact. In the event that internally provided security, whoever pays for it, is not adequate to the circumstances and the police are called in, who becomes responsible for the costs?
Amendments 24 and 43, spoken to by the noble Baroness, Lady Smith, exactly address that set of issues, and I was about to comment on them. They concern the duty to generally bear the security costs for events. Understandably, the amendments probe how the costs of the provision of security for controversial meetings should be distributed among appropriate bodies. The duty on higher education providers, colleges and student unions is that they must not pass on some or all of the security costs to event organisers unless there are exceptional circumstances. The criteria for what are exceptional circumstances will depend on the nature of the particular body, and therefore must be set out in its code of practice, for the sake of transparency.
This element of the Bill is exceptionally important. We know that certain minority groups face serious security concerns when speaking on university campuses, as the noble Baroness, Lady Bennett, pointed out. My right honourable friend the Minister spoke in the other place about the University of Bristol students’ union imposing a £500 security bill on a student society in order to allow the Israeli ambassador to give a talk. This is simply not right. The cost of securing events should not stand in the way of people having a voice. The Bill as currently drafted protects these groups while also giving autonomy to providers, colleges and student unions to make their own decisions about what constitute exceptional circumstances. This drafting reflects that their resources are not finite and that there may be other relevant factors specific to that institution that will need to be taken into account.
The noble Baroness, Lady Smith, asked about exceptional circumstances and when costs can be passed on. We believe it is important that providers, colleges and student unions have the right to determine what constitutes an exceptional circumstance when considering who should pay for security costs of an event, taking into account, in particular, what is reasonable given their resources and other relevant factors. It is also important that the criteria they use are transparent, so that student societies are aware of them when they are planning an event. If costs are passed on to a student society and it considers that the criteria have been wrongly applied, it will be able to complain to the OfS under the new complaints scheme. Once again, we anticipate that the OfS will publish guidance on the content of codes of practice, including on security costs.
When the police decide to intervene, it is often not because a host organisation decides that they should or invites them to. They make a judgment, as constables, as to what would constitute a way of securing a peaceful circumstance for the event or for the premises. Nobody knows that it is going to happen unless they decide to do it, and nobody decides who is going to pay for it in advance, but happen it does, and arguments about who should then pay for it occur. How would a code of practice deal with that?
I am not sure I accept the noble Lord’s argument. If an event is properly planned—which it should be, particularly if it is sensitive or controversial—its security implications should surely be considered in advance. If it involves a police presence, that consideration should surely encompass the cost of that police presence. It would be a very remiss institution that did not look at the effects and requirements of the event in the round before it happened.
If I may respectfully say so, that is a terribly important point. It is obviously critical that people give careful consideration in advance as to whether they are going to invite a particular speaker, or whoever it may be, to come along and speak. I made a note of what I regard as a rather important observation the Minister made a little earlier this evening; he said that there is no right to a platform. That is a very important point. If I may say so, it would be helpful to record that point in the code of practice in due course, because if at the outset the relevant university organisation can anticipate a problem, one way of resolving that problem, including the cost question, is simply to say, “There is no right to a platform and we are not going to invite this person to speak”. That also involves necessarily the proposition that each of the university institutions has a very good processing place for room booking and matters of that kind. That is a very important point. I respectfully suggest that the code of practice should emphasise the importance of that discretionary power, which would not give rise to any liability or obligation on the institution under the Bill, if and when it becomes legislation, and that institutions are free to say no from the outset.
Following on from the point made by the noble Lord, Lord Grabiner, could the Minister clarify how the Government envisage the duties in the legislation we are debating today and the Prevent duties? There is already a whole set of pieces of paper and so on that organisers of events in higher education institutions are required to fill in. Are we expecting additional work and additional documents, or would the same set of paperwork work for this legislation as well as for Prevent?
We are coming later on to a group of amendments that could well encompass the noble Baroness’s question about the Prevent duty, but my answer to her now is that the planning of an event involves a number of considerations: the security costs; whether it impacts in any way on the Prevent duty; whether it impacts in any way on the public sector equality duty; and so on and so forth. This is a set of issues relating to an event that might be considered controversial that will need to be looked at altogether in the round. I cannot say whether there will be a separate set of papers, but if I receive advice on that point, I will certainly write to the noble Baroness.
To conclude, we want these provisions to offer a safeguard to groups that might come under serious security pressures, while also giving providers, colleges and student unions the independence that they need. I hope I have reassured noble Lords on these issues and sufficiently addressed the concerns raised.
Amendment 5 withdrawn.
6: Clause 1, page 1, line 18, leave out first “any”
In not moving the amendment, I just say to the Government that sometimes, in government and politics, simplicity is best. If the word “any” stays in the Bill, people will read that and it will create additional conflict in advance for universities. I hope the Ministers will take that away and consider it.
Amendment 6 not moved.
Amendments 7 to 11 not moved.
12: Clause 1, page 2, leave out lines 7 and 8 and insert—
“(5) A provider must—(a) take the steps set out at subsection (1) to secure the academic freedom of—(i) academic staff, and(ii) visiting speakers who are academic staff of any other higher education institution; and(b) not subject any member of academic staff to any detriment (including dismissal) through any act, or deliberate failure to act, done on any ground that the member of academic staff has exercised his or her academic freedom.”Member’s explanatory statement
This amendment seeks to extend academic freedom protection to academic visiting speakers, and to forbid outright any punishment of academics for lawful exercise of academic freedom.
My Lords, the importance of this amendment is to put the duties towards academic freedom on a rather different basis from those currently in the Bill. New Section A1(5) says:
“The objective in subsection (2), so far as relating to academic staff, includes securing their academic freedom.”
We want to secure their academic freedom, but that is—via new subsection (2) and then back to new subsection (1)—on a “reasonably practicable” basis, so it is not an absolute duty.
The effect of the amendment is, first, that:
“A provider must … take the steps set out at subsection (1)”—
which is a “reasonably practicable” duty—
“to secure the academic freedom of … academic staff, and … visiting speakers”.
That will remain on a “reasonably practicable” basis. But secondly, under proposed new paragraph (b), the amendment would
“not subject any member of academic staff to any detriment (including dismissal)”
and so on, and is subject to the “must” clause because it does not link back to new subsection (1).
The important essence of this amendment is to impose an absolute, rather than a “reasonably practicable”, duty not to dismiss or punish an academic for exercising his or her academic freedom. Without this amendment and this change to the structure, a provider could argue that continuing to employ an academic who has stirred things up and who is unpopular with activists would be impracticable. That would be particularly relevant, for example, where an academic is conducting or has conducted a line of research that is socially or politically sensitive so far as the end product is concerned, and where that research perhaps upsets existing social norms as well as academic norms. In the field of science, for example, one can think of genetics, sex, race or psychology. It can also be in political contexts.
Let us assume it is completely bona fide scientific research but of a novel line that has discovered things that upset people dramatically. There is then an uproar, and the university just says, “This is all too difficult—I’m afraid Dr X has to go”—and, actually, Dr X has been doing proper research subject to all the norms of academic freedom.
Nowadays, the problem is not simply how universities control third parties who are trying to shout down free speech, but how they themselves act. That is something in their absolute control when they take a decision on whether to hire or fire somebody and it is important that the duty not to dismiss is subject to this absolute obligation. Of course, they can dismiss on proper grounds, as one would in any contractual state or fair dismissal; but if it is based on academic freedom, and they simply say, “Your research has stirred things up too much. We can’t cope with this. We want a quiet life”, that must not be acceptable. It must be an absolute duty and that is what this amendment is about.
Looking at proposed new subsection 5(a)(ii), I do not really understand why the noble Lord wishes to confine this to
“academic staff of any other higher education institution”.
A visiting speaker may not fall within that definition, but is nevertheless a person who in principle should be protected and allowed to speak, and have freedom of expression. I do not really understand why it is restricted in that way.
My Lords, I wish to introduce Amendment 14. It touches on the kinds of concerns that the noble Lord, Lord Sandhurst, has just raised and it is, in my estimation, a kind of partner clause that I want to explore with your Lordships to the one introduced by the noble and learned Lord, Lord Hope of Craighead, at the very beginning.
One of the arguments I have tried to advocate to the Grand Committee is that, if this is to work at all, it must be felt to be under the ownership of the university and higher education world. For people to address a cultural problem, they need to get to grips with it. It is not about just processes and techniques—it is to do with very fundamental feelings. However many times references to academic freedom are made, if they are not made in a way which aligns with how the academic world and the academic community understand the meaning of those words, it is unlikely to take root and will not have that cultural impact.
That is why I have raised the question, which was also raised earlier by my noble friend Lord Collins, of the UNESCO normative instrument. This was a worldwide UNESCO conference, which adopted a worldwide definition of academic freedom which had been promoted by the academic world, the very people we are trying to address, as a definition to which they could all assent and which they would all defend. I make that point because, if we are to achieve success in this, we certainly want them to adhere to it and defend it.
The work was invited by UNESCO of a body that at that time I had the great honour to chair, which was the Association of Commonwealth Universities, an association of universities literally throughout the Commonwealth. It was drafted—some bits have been cited by my noble friend Lord Collins already—in the United Kingdom and Canada, and went through a very long process to try to make sure that this was the definition of academic freedom which the world of academics would feel was theirs.
If we had gone to UNESCO slightly earlier, the noble Lord, Lord Boswell, would have been the Minister. If it had been slightly later, it would have been the noble Lord, Lord Henley. As it happens, it was just after the general election of 1997 and, as a consequence, it was a Labour Minister who spoke to it. I make that point because there was never a cigarette paper—I know nothing about cigarettes, but the Committee will bear with me—of ideological difference between us about this. There were some differences around the world about it, and one or two nations—only one or two—declined to sign it, much to the annoyance of the rest of us. Saudi Arabia declined on the grounds that it covered women academics as well, and it did not accept that anything should be a right or privilege for women academics—no rights to academic freedom whatever. If we had included a clause restricting it to male academics, Saudi Arabia would probably have signed it as well. I just make the point that this was as close to universal as you could get in academic life where, believe me, getting universal agreement is very close to impossible.
The merit of that is that it provides us with a definition of academic freedom. It may be said that there are other definitions, but this provides us with one that the academic world itself formulated, adopted, approved and, with the exception of people who did not want women to be covered by it, was accepted by everybody. I should probably add that Qatar did not like it either for the same reason, but none the less, all the rest of us did. I commend it to the Government because, if the Bill is to become law—we have expressed our anxieties about whether it is the best way forward, but it may very well do; it is government-backed legislation, after all—I appeal to them to try to ensure it brings along everyone, because short of that, its prospects in practice are very poor.
That is why I provided a small history. As it turns out, it was engendered in the Commonwealth, in institutions with which we are probably all very familiar, against the background of a set of values with which we are all familiar and opposed only by people who, if I may say so without being unnecessarily unkind, do not share some of those values at all. Aside from having the assent of the academic world and being still referred to and related to by it, it establishes in a way we would all want that if people want to get up within the law to make controversial, difficult, unpopular or any other kinds of propositions and speeches in the academic world, it is a global right to do so, signed off by the first signatory to it, the United Kingdom.
I shall speak to Amendment 17 from the noble Lord, Lord Strathcarron, to which I have put my name. The amendment strenuously argues that the Bill needs to make it explicit that expressing opinions about any registered HE provider, including opinions on its “curriculum, governance, affiliations”, “teaching” and so on, will be protected by the Bill. Specifically, I want to look at a new challenge to academic freedom in relation to institutional values.
I do not know whether noble Lords saw a remarkable interview over the weekend with a couple of women, Carole Sherwood and Amy Gallagher from the Tavistock clinic. For once, this is not in relation to the gender issue and the Tavistock. One of the women had refused to accept as fact a critical race theory definition of racism as white privilege. Remarkably, the people who were teaching her in front of classes said that she would be denied her psychotherapy qualification because her views were not in line with the Tavistock’s values.
This is becoming a clearer problem that we face, because universities, or their HR and management, are signing up to third-party bodies, which then sign the universities up to values and priorities that might well be at odds with the views of academic staff. Obviously, the infamous example is Stonewall’s diversity champions scheme, but more recently it has come to light that Advance HE’s race equality charter is having the same impact. That charges universities a fee to provide advice and training to audit the university’s anti-racism strategies, themselves formulated around Advance HE’s guidance—you can get bronze and silver certificates and so on along the way. Advance HE encourages universities to highlight their race equality scores in their marketing. Arif Ahmed, lecturer at Cambridge, who has been quoted a lot today, thinks that the charter encourages what he says is virtue signalling competition between universities. I give credit to Dr Jim Butcher from Canterbury Christ Church University in Kent and the campaign group Don’t Divide Us for bringing this to light.
Obviously, we can assume that 99.9% of students and lecturers consider themselves to be anti-racist. The problem is that regardless, this is a very particular version of what constitutes anti-racism. Advance HE’s training argues that the curriculum has been corrupted by western ways of knowing; that our attitudes are shaped by whiteness. It is a version of critical race theory that says that inequality persists even in the context of formal equal rights. That is fair enough, but when it asks that question it gives some at least contentious answers, such as that unequal treatment is a product of white supremacy.
Of course academics and students should be free to hold any of those views—I am not one of those who think that critical race theory should be banned from the university, especially in the context of being a champion of academic freedom—but the problem is that when universities give CRT explicit institutional backing, that means that any academic who doubts the salience of white privilege theories or disagrees with the demand, for example, to decolonise the curriculum not only is arguing against a body of thought but ends up arguing against their employer, which puts them in a very difficult position. We have to be very clear that one should be able to argue against one’s employer or these theories, and we should not be in a situation where somebody is denied a qualification on the basis of the values of the university, which is imposed from the top down and which one is not allowed to query.
I also want to mention some qualms I have about Amendments 15 and 16, which have not been argued for. They attempt to hem in a definition of academic freedom into areas of expertise and professional responsibilities. In particular, Amendment 16 wants to remove
“and controversial or unpopular opinions”
because, as it says in the notes, they have no roots “based on evidence”. I query that, because it is very important that we have a sense of academic freedom here that is much broader than the narrow confines of one’s academic expertise. Actually, the Government did listen on this: I think they had “professional expertise” in and they have taken it out. I do not want to see it being brought back in.
One of the special things about collegiate academic life is surely, in its ideal sense, that academics are given time, space and resources to think deeply about the world. We want them to become our public intellectuals, do we not? I think it is very difficult to define what that professional expertise should be restricted to. Would a professor of international relations, for example, get into trouble for criticising the efforts to decolonise the curriculum in another department and fear repercussions if he was moving outside his area of expertise? I think this will have a chilling effect if we accept it.
On controversial and unpopular opinions, and the idea of, “Where is the evidence?”, we are haunted by this idea of a complete lunatic crank science person who does not believe in science, and we are told that they are going to have a field day if the Bill gets through—this even came up in the discussion earlier. However, it is important to note that, in science, or in any field, you do not always just have the evidence. Is not university where you find the evidence? Is not the push for truth where you ask questions and come up with new ideas of truth? Knowledge is not stuck in aspic, but we are constantly saying that things have to be evidence-based in this way.
I am reminded of the lecturer from the University of Plymouth who tweeted, “All lives matter, and gender has a scientific basis”, following which there was an anonymous complaint, and then a second complaint. He was accused of hating blacks, women and immigrants, and he was threatened with a process by his university. It was only when a barrister from the FSU got in touch that he was let off, but he described the process as horrific and damaging to his family, career and so on. The reason I am saying this is because the idea that academic freedom should be so narrowly hemmed in that it is based only on a scientific, “show me your evidence” approach is a dangerous way to go. That is why I keep insisting on a very broad definition of academic freedom.
My Lords, I rise very briefly, because I think Amendment 14, in the name of the noble Lord, Lord Triesman, gives us a very interesting, powerful and effective way forward. Like the noble Lord, I retain concerns about whether the Bill should be going forward at all, but if it is going to, to use a long-accepted international definition seems to take us somewhat in the right direction.
The stress in that UNESCO document on freedom from institutional censorship brings up some very powerful examples. I thought of some of our universities which have, I am afraid, accepted large sums of money from very dubious state bodies from around the world, where some academics have perhaps found themselves under pressure not to produce research or make comments critical of those authoritarian regimes. I also very much thought of a whole series of papers I have just looked at, all published in 2018, in the International Journal of Risk and Safety in Medicine, the American Journal of Industrial Medicine and the Journal of Public Health Policy, all of which address Monsanto’s influence on academic research and publication around the pesticide glyphosate, and all of which were published by different authors—none of the authors’ names are shared. For example, one paper revealed that Monsanto sponsored the ghost-writing of articles in toxicology journals and interference in the peer review process.
I retain all those concerns, but I think the noble Lord, Lord Triesman, may have found us a very useful potential way forward here.
My Lords, I think my noble friend Lord Wallace’s amendments here speak directly to some of the points raised by the noble Baroness, Lady Fox. My noble friend’s Amendment 13 states:
“Page 2, line 12, after ‘wisdom’ insert ‘within all fields covered by their professional responsibilities’”.
That could be taken by the noble Baroness, Lady Fox, as a way of narrowing the legislation again. It is really intended, if not quite as probing, to try to understand the Government’s understanding, in this legislation, between academic freedom and freedom of speech for academics. Is it to be only within the confines of their own discipline, or is it to be anything within the academic sphere? The parallels are in other professions, where people might have their own standards, so Amendment 13 is to try to understand—
Sorry, Amendment 15. This just demonstrates that the profession I need to go to is my optician, which kindly cancelled my appointment.
Amendment 15 is very much to think about to what extent this is about particular academic standards. I suggest that it is in effect probing, although my noble friend does not say that.
The next amendment, which I think we all take as being Amendment 16, is to omit
“and controversial or unpopular opinions”.
This is not necessarily to say that these things should not be there, but in the debate on an earlier group of amendments the Minister pointed out that beliefs and views are not the same and that beliefs are protected under the Equality Act. But then there is the question of where we put unpopular opinions. They are not beliefs. Are they views? Should they be in there? My noble friend’s question here is about whether we should expect academics to put forward views based on evidence. Here the noble Baroness, Lady Fox, has a point, because while we would expect to look for evidence, at some point in the intellectual journey you might be looking for evidence and not yet have found it—but presumably we would want the views that academics espouse to be at least based on something that goes beyond the whole QAnon idea of fake news and invented facts. Do the Government have a view on that?
In Amendment 20, my noble friend is again concerned about practicality. To what extent should the Government expect to be involved, or expect the law to be involved, in the way higher education institutions are engaging in promotion and looking at the way people are appointed within higher education institutions? We are not necessarily suggesting in any way that people’s jobs should be put at stake, or indeed that they should not be promoted, but this is a probing amendment to understand how far this legislation is intended to go.
Finally, I suspect the last word from me today is on Amendment 23, also in the name of the noble Baroness, Lady Bennett of Manor Castle. Again, to what extent can the Government and the law be involved? What is the Government’s intention here? How far do they intend to interfere further in higher education institutions?
My Lords, I share the concerns of the noble Baroness, Lady Fox, around Amendment 15. I was quite pleased when the Government removed this language at an earlier stage of the Bill’s proceedings. I have concerns about it on a number of levels, but I shall focus on just two of them.
First, I think it would be potentially a big brake on the development of greater interdisciplinarity in academia. The ability of people to work across disciplines is vital to our ability to make progress on some of our biggest challenges as a society, climate change among them but far from the only one. Requiring academics in effect to stay in their lane would be a big brake on that and stop a lot of creative thinking. Research suggests that at the moment the most impactful science is happening at the margins of disciplines, when people take the courage to work with their peers in other disciplines and to think about the shared learnings and transferable skills they take from one academic discipline into another. If the Bill inadvertently sent out a message that this was epistemic trespass, it would be very bad for the quality of our science.
Sorry, it is me again, but this is me as myself. Can the noble Lord explain why it is different for academics working at the margins of their fields but not experts in other fields, whose rights will not be protected by the Bill but who might also be contributing meaningfully to further research and pushing the boundaries of knowledge?
I think there is a marketplace in ideas—maybe I am not answering the noble Baroness’s question as she might like. Good ideas stand the test of time, they get picked up by other academics, they get cited, and that whole process of establishing which ideas are good and which are not is pretty effective and works well. The charlatans, the snake oil peddlers and the bullshit artists find that their ideas will not get repeated endlessly and established in the canon of good academic practice.
My second reason for questioning whether it will be sensible to reintroduce this language into the Bill is that I simply do not think it is practicable in any meaningful way. Who is to police the boundaries of someone’s academic expertise? Who is to stand in judgment and say, “You’re qualified to have an opinion”—unpopular or controversial—on a particular subject? I simply do not see that as viable, so I am very hopeful that the Government will not relent and let it back in.
I apologise to the Committee because I was unable to be here for Second Reading, so I come a little late to it. Nevertheless, it is a pleasure to follow the noble Lord, Lord Johnson, because I share his views on Amendments 15 and 16, but I will also speak in opposition to Amendment 17. He is quite right to say that they would diminish academic freedom. I refer particularly to the humanities and social sciences, although I think he was referring to “the sciences”. It is frequently the case that over a 45 or 50-year academic career someone will follow a particular discipline for, let us say, a decade or two, and then find themselves, as science and research continue, to have something to say about something else and to shift.
For example, somebody mentioned an international relations scholar—I am married to one—moving into historical research. It would dampen and diminish academic freedom, rather than enhancing it, so I certainly oppose Amendment 15 on those grounds. There is one other ground. I think that this year we are coming out of the 50th anniversary of Thomas Kuhn’s work on paradigm shifts, The Structure of Scientific Revolutions. That provides all the evidence we need that discovery does not move in a linear fashion. It does not have an end goal that you can arrive at. Ideas change, shift and adapt, and that is how new paradigms come about. I do not want the Minister to give way on those grounds.
The noble Baroness, Lady Smith, also wanted to know from the Government about beliefs and opinions and where the boundary lies. I suggest that the boundary lies in a tribunal in interpreting whether beliefs or opinions can be deemed to be protected characteristics. Because I have touched on protected characteristics, perhaps I need to declare that I chair the Equality and Human Rights Commission—to get that on the record—although I am speaking to the amendments in a personal capacity.
I have sat here for several hours. Much has been discussed about academic freedom and the definitions of it. Perhaps I could help the noble Earl by pointing out that, if I am correct, academic freedom is already defined in Section 202 of the Education Reform Act 1988. It states that in exercising functions, university commissioners must have regard to the need to:
“ensure that academic staff have freedom within the law to question and test received wisdom, and to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions”.
If that already stands, I urge the Committee not to go there on Amendment 16.
Finally, I turn to Amendment 17, which, as the noble Baroness, Lady Fox, explained, seeks to protect an academic’s freedom to criticise the institutions at which they work. I feel deeply uncomfortable about this. Universities are employers like other employers. Employers have terms and conditions of employment, and it would be quite extraordinary if they were to continue to pay good money to staff who sought to undermine them. Academics within faculties at the same institution disagree with each other all the time. You only have to pick up the thinnest peer review journal article to see that there is vigorous disagreement between academics.
On the idea that we need to put into legislation that they should be allowed to criticise an institution, again, this could be tested by the courts. If a university was minded to dismiss someone because they were bringing the institution into disrepute at such a level that it thought it would be better not to have the services of that person in the institution, that person could test that through current employment law.
I completely understand the noble Baroness’s point about terms and conditions. That is perfectly reasonable in terms of employment law, but what we are talking about here is the danger of the phrase “bringing an institution into disrepute”, which has been used by universities when people are accused of being, for example, transphobic. First, “disrepute”, in one of the amendments, is a very slippery word, as somebody said. Secondly, I was trying to draw attention to the fact that a lot of the new ways that universities are operating were never part of the terms and conditions that somebody signed up for, and academic freedom is something that you might expect of a university.
There has been a lot of talk about Oxford and Cambridge. Would a Cambridge academic not be able to criticise Cambridge University for its failure to, for example, maintain academic freedom? Is the noble Baroness suggesting that that would breach their terms and conditions, that it is egregious and that they should not be allowed to do that? It seems to me that that kind of freedom to criticise is very important.
Many years ago, I fought a strike and won, where they tried to impose on a further education college that we would never criticise what was happening in the college. It was seen then as an attack on our freedom to talk openly about education. Suggesting that if you are an academic you are going to go out and slander the college is completely different from what we are really talking about here, which is the open ability to be able to criticise when you are being clamped down on, often in free speech terms.
My Lords, I shall just deal with that. I am aware of very vigorous debate at Cambridge University, but I am not aware of the university having fired an academic for standing to defend free speech. In fact, most of the arguments at Cambridge currently are about academics who are standing up and saying to the former vice-chancellor that the current vice-chancellor is going to go and spend more time with his family and that they have had enough of him, more or less.
To my mind, the Bill could have been written in three pages. It almost goes into micromanagement of higher education institutions—autonomous institutions, we have to remember. To my mind, it makes a bit of a meal of a problem that I completely accept exists but could have been addressed in a slightly more constrained fashion. All the debates I have heard, and I read the Second Reading debate, had more and more people wanting to hang baubles on to the Bill to essentially make higher education institutions non-autonomous and to put them into a straitjacket whereby there will be a deeper constraint on free speech.
We will come to Clause 4 next time, on Wednesday or whenever, and we can talk about that then. It is a relatively good and carefully drafted Bill. We run the danger of adding so much to it—and it comes, as I said, on the back of several previous higher education Acts—that we will end up with the opposite of what we wish to see.
My Lords, I shall speak briefly in support of the noble Baronesses, Lady Fox of Buckley and Lady Falkner of Margravine, and my noble friend Lord Johnson of Marylebone in opposing Amendment 15. The noble Baroness, Lady Falkner, referred to the 50th anniversary of a seminal book. I think it would be odd if we got through a debate on universities without referring to the fact that it is roughly 170 years since Cardinal Newman published his lectures, known as The Idea of a University, probably the first attempt in the 19th century to define what a university looked like and what it was for. I have a familiarity with every single line of that book because, when I was a schoolboy, I proofread the standard current Oxford authoritative edition for its editor, Father Ian Ker. Indeed, a very minute examination of the acknowledgements would reveal that to be the case.
We are discussing this in a very modern way, but there are two things we can take away from Newman that really are very important and relevant to this amendment. The first is that the word “university” implies universal; that is, there are no bounds on the fields of inquiry to which a university can go. The second is that, for Newman, this is a collective endeavour. We are discussing this as if the advancement of knowledge was to be followed only by individuals with specific expertise in certain areas, and as if the sharing and communication of knowledge among them—be it through papers, through social engagement or simply through having dinner together and discussing things—was not a crucial part of that endeavour. I simply urge those two points at this stage. It seems to me that Amendment 15 is wholly misconceived as to how knowledge is advanced and what a university actually is and should be.
First, I apologise for not attending Second Reading; I could not be here. I shall speak very briefly against Amendment 16 because I think it is very dangerous to leave out “controversial or unpopular opinions”. Newton had a particularly controversial opinion, Einstein too, and Galileo’s opinion on Copernican heliocentrism, which for you and I is the earth rotating daily and revolving around the sun, was met with opposition by the Catholic Church; he was tried under the Roman Inquisition in 1615 and spent the rest of his life in house arrest. To suggest that we remove the words “controversial or unpopular opinions” is, I think, very dangerous.
My Lords, I speak to my Amendments 17, 18, 19 and 21. We have already debated Amendment 17 at some length. I hope that Amendments 18, 19 and 21 are uncontroversial; I merely hope to tighten up and future-proof for anything that comes in the future. I believe that they address some concerns raised in an earlier group by the noble Lords, Lord Collins of Highbury and Lord Triesman, and the noble Baroness, Lady Fox of Buckley, and I hope they prove agreeable.
I briefly say that I think the noble Earl has three things he needs to address in this group of amendments. The first is academic freedom, which has been referred to before. My noble friend Lord Triesman has brought to the Committee an amendment that deserves consideration, because I think it helps us. The second issue has created quite a discussion—what is the interface between the terms and conditions, the values and employment of an academic and their speech? I am not going to comment on that, frankly; the noble Earl is going to have to tell us what the Government think about that. The third issue, of course, is whether the other issues raised in this group affect the practicality and appropriateness of universities’ appointment procedures. I am not sure at all that that is the case. Those are the three issues I think the noble Earl will have to address, probably the next time the Committee meets.
Debate on Amendment 12 adjourned.
Committee adjourned at 7.43 pm.