Lords consideration of Commons Amendment to the Higher Education (Freedom of Speech) Bill - May 10

Motion A

Moved by

Earl Howe

That this House do not insist on its Amendment 10E to which the Commons have disagreed and do agree with the Commons in their Amendment 10F in lieu.

10F: Page 6, line 27, at end insert—

“(2) In subsection (1), “loss” means loss of any kind (pecuniary or non-pecuniary).

(3) A person may bring proceedings under subsection (1) only if—

(a) the person has brought a complaint relating to the same subject matter as the proceedings under a relevant complaints scheme, and

(b) a decision has been made under that scheme as to the extent to which the complaint was justified.

(4) Each of the following is a “relevant complaints scheme”—

(a) the scheme provided by virtue of Schedule 6A (the free speech complaints scheme), and

(b) the scheme for the review of qualifying complaints (within the meaning of section 12 of the Higher Education Act 2004) that is provided by the designated operator (within the meaning of section 13(5)(b) of that Act).

(5) Subsection (3) does not apply where the civil proceedings under subsection (1) are for an injunction only.”

Earl Howe (Con)

My Lords, we return to consider the Higher Education (Freedom of Speech) Bill for what I hope will be the final time. I thank noble Lords once again for the insightful debates that we have had on this important Bill, which is designed to ensure that the higher education sector in England is protected from the chilling effects of cancel culture which have been taking hold on campuses and in other areas of our society.

As noble Lords will recall, the statutory tort has generated some animated debate in this House. I am glad that we have now all agreed that this crucial measure should remain part of the Bill, though the final wording remains for consideration. On 2 May, the other place accepted this House’s Amendments 10B, 10C and 10D, which noble Lords voted to include in the Bill on 21 March. Mirroring Amendment 10E and building on these amendments, the Government tabled further amendments which seek to satisfy both Houses as well as academics and advocates of free of speech. These are what are now before us to consider.

The proposed new subsection (2) deals with an issue that we have discussed in this House before, in response to an amendment tabled by the noble and learned Lord, Lord Etherton. I said on Report that loss

“is not limited to pecuniary loss and could include damage to reputation, for example”.—[Official Report, 7/12/22; col. 207]

This amendment simply makes this point clear in the Bill. Proposed new subsections (3) and (4) mirror this House’s Amendment 10E, and (5) adds a helpful nuance to our already agreed position, that civil proceedings should be a last resort once the complaints schemes of the Office for Students or the Office of the Independent Adjudicator for Higher Education have been exhausted.

Some Members of the other place expressed concern that the Bill, as returned to them from this House, would prevent individuals from seeking an injunction where swift action is required to rectify a breach of the specified freedom of speech duties. For example, if a student is expelled from their course by a higher education provider because of a freedom of speech issue, this amendment would mean that the court could make an order requiring the provider to let the student back on the course immediately, thereby avoiding the need for the individual to put their life on hold and delay pursuing their studies, which would otherwise ensue.

In a case such as this, a recommendation made by the OfS or the OIA may simply come too late to avoid such damage. We believe that such cases are likely to be rare. Seeking an injunction is financially costly. Injunctions are a discretionary remedy and the courts do not grant them easily. We are clear that the overwhelming majority of complaints that allege a breach of the freedom of speech duties will proceed, as has always been envisaged, via the schemes that are operated by the OfS and the OIA. I hope that noble Lords will therefore accept the amendments from the other place, so that this Bill can proceed to Royal Assent. I beg to move.

Baroness Lawlor (Con)

My Lords, I seek some clarification of the new subsection (3)(b) proposed in Amendment 10F, which provides:

“A person may bring proceedings under subsection (1) only if … a decision has been made under that scheme as to the extent to which the complaint was justified”.

I seek clarification that an institution cannot delay the proceedings of decision-making indefinitely, because some institutions have quite a number of funds at their disposal and quite good administrative back-up, whereas an academic making a complaint and taking a tort action may be alone and without the same back-up. I hope that there is some provision for a time limit on an institution reaching a decision.

Baroness Thornton (Lab)

My Lords, I thank the Minister for his introduction of the government amendment in lieu and Amendment 10F.

When the Bill left this House with the amendments, led by the amendment tabled by the noble Lord, Lord Willetts, which was supported from these Benches, it was the Government’s own amendment at an earlier stage, aiming to mitigate the risk of legal action, and that civil proceedings should be the last resort, upon which we all agreed. Since then, the Government have amended the clause in question. The Minister explained why the Government have felt that it was necessary to do that. However, the amendment may create a perverse incentive for claimants to bypass the schemes created in the Bill in search of an injunction, including in anticipation of a breach, and it cannot possibly be the intention for this additional amendment, added in the Commons, to open doors to unintended consequences. I would like the Minister’s clarification on this because it seems that this amendment at best muddies the waters, and it might be dangerous. I would like his reassurance on that matter.

Lord Grabiner (CB)

My Lords, when this Bill left your Lordships’ House, it seemed that through the amendment tabled by the noble Lord, Lord Willetts, we had achieved a reasonable and workable compromise. Sensibly, the Government had accepted as axiomatic the principle that the person complaining that their freedom of speech had been unlawfully interfered with would first have to exhaust the regulatory complaints procedure before being permitted to commence civil court proceedings. The key amendment that we are now presented with will, I am afraid, blow away that compromise. These amendments will positively encourage civil court proceedings. For practical purposes they abandon the priority point, to the extent that the complaining party need not complete the regulatory process before commencing injunction proceedings. Indeed, the complainant would be entitled to ignore the regulator altogether and proceed directly to the court and seek an injunction.

I should make that criticism good by reference to the wording that has been presented to us. First, there is now an extended definition of “loss” which means loss of any kind, pecuniary or non-pecuniary. Through our previous debates, it has become obvious that a typical complainant would be hard pressed to show even nominal pecuniary loss resulting from a breach of the new duties imposed by the Bill. That is one of the reasons for the original objection to Clause 4 and why breaches of these duties should be dealt with by the Office for Students as the regulator and not by the courts.

The introduction of the concept of non-pecuniary loss suggests damages for emotional, mental or psychological distress. Again, however described, this is unlikely to produce significant damages figures, but express reference to it in the statute will be an encouragement to suitably motivated claimants to use the civil courts against universities, colleges and student unions. By itself, that would be tolerable, so long as the priority position were left in place.

Secondly, the troubling aspect of the amendments is in government Amendment 10F, to which reference has already been made, and in particular proposed subsection (5), which would displace the priority principle and expressly give the claimant the entitlement immediately to sue in court for an injunction. In my view, the claimant need not even bother to invoke the regulatory process. The claimant would be free to ignore the regulator and go straight to court. That is why I suggest that the sensible compromise previously achieved would be blown away if the Bill in this form became law.

For the record, I should make three further points. I will make them very briefly. First, our universities, colleges and student unions should not be subjected unnecessarily to the expense and unpleasant burden of court proceedings when we have an experienced statutory regulator in place. Secondly, many noble Lords—I am one of them—believe that ill-motivated troublemakers will be encouraged to invoke these provisions. We should not be encouraging divisive litigation or inappropriate use of the already clogged-up court lists.

Thirdly, the important purpose of the Bill is to encourage and improve the state of free speech in our universities and colleges. All sensible people support this excellent objective. That said, if the Bill in this form becomes law, universities, colleges and student unions would be well advised to make sure that no controversial speaker is ever invited to address the students: why would they take the risk? As a result, and ironically, freedom of speech will be undermined and not enhanced, and we will never be able to measure the extent of that damage.

I did not want my whinge about Clause 4 to be left stuck in my craw, but I also recognise that there is no appetite for more ping-pong on the Bill.

Baroness Fox of Buckley (Non-Afl)

My Lords, I am very glad to be here, to hopefully see the Higher Education (Freedom of Speech) Bill fly through at last and become law. I am also pleased to see that some attempt has been made to restore some teeth to this important legislation. It is true that it is not the full tort that some of us argued for—indeed, the very remedy the Government themselves initially suggested was necessary to deal with the ever-growing problem of cancel culture on university campuses—but at least those who have their free speech rights impinged on can secure a low-cost injunction in a county court. That would restore some of the speaker events and debates that have been blocked—effectively censored—rather than having to rely on the hugely expensive judicial review in the High Court as the only option, or the internal methods that people have talked about but about which I am more dubious.

I also welcome the amendment’s expansion of the definition of “loss” beyond simply financial loss. Of course, loss of one’s income or of costs incurred organising an event should be subject to compensation, but, as has been said, the real loss is so often reputational: that horrendous label of “bigot” that hangs around and is hard to shake off.

6.15pm

I recommend that everyone should read Steven Greer’s new book, Falsely Accused of Islamophobia: My Struggle Against Academic Cancellation. Professor Greer, a former professor at the University of Bristol, had his 36-year blemish-free teaching career totally upended in 2021 when a small group of students accused him of ridiculing Islam and mocking the Koran in his course on Islam, China and the Far East. The complaint was baseless and he was totally exonerated after an official investigation, but, in his telling, the university failed to adequately defend him or academic freedom. The investigation dragged on for five months. The process was used as a punishment, in a way—so we do need the remedies. Worse, his module was withdrawn when he returned to work, fuelling the idea that, somehow, he really was Islamophobic. He felt that his reputation was tarnished—although he is now working as a research director with a progressive Muslim Imam in Bristol, so there is a happy story there.

This example urges me to stress to the Minister that it is imperative that this Government—indeed any Government—work with cancelled students and academics in drawing up the Bill’s suggested statutory code for complaints scheme and much improving it. I also hope that the soon-to-be-appointed free speech champion might initiate a call for evidence so that we might assess which issues are prone to cancellation and the scale of the problem that often goes on behind the scenes, behind the traditional no-platform headlines.

Only today, a student from St John’s College, Cambridge, Charlie Bentley-Astor, contacted me because a film showing that she had organised of a documentary, “Birthgap—Childless World”, had been cancelled. A campaign by certain student activists and Varsity magazine objected to the film’s director, Stephen Shaw—who has flown over from the US to speak at the event on Friday—because, shock horror, he appeared on a Jordan Peterson podcast. But that is all grist to the mill. Ms Bentley-Astor defended her opponents’ right to protest outside the film—because, thankfully, some students are liberal and believe in civil liberties. However, due to the mere threat of a demonstration, and despite the film organisers creating a detailed risk assessment and organising stewards, the college has now called off the film, using the familiar formula that the event would be too disruptive and it is thinking of the safety of the attendees. Therefore, I think that the threat of civil action, of something harder, is sometimes necessary.

In that instance, I also urge the Government to make this legislation a real living instrument of free speech, not a box-ticking exercise for university managers. I credit the noble Lord, Lord Mendoza, provost at Oriel, for recently hosting a Living Freedom event on the lessons we can learn from Locke and Milton about free speech. It was well attended by students. That is the kind of thing we need: to be positive, not to whinge.

Not all university leaders are quite as bold, and I want to urge that this is where we end. Last week at Edinburgh University, a film screening due to be hosted by the Edinburgh section of Academics for Academic Freedom was cancelled for a second time. The film, “Adult Human Female”, is a gender-critical documentary, and we know how controversial that is. It was due to go ahead and given the go-ahead by the university, undeterred even by the Edinburgh branch of UCU cheering on a protest comprising a loudspeaker blaring out vile, frankly sexist, speeches. However, when masked activists shut off entry to the venue, university security did not remove them. The film was not shown again. I hope that the Bill will be used to look at how we tackle such examples as the heckler’s veto: maybe injunctions are necessary. I hope that the law will encourage the likes of Edinburgh University’s leadership to personally host the film, guarantee that it happens, and show some courage—which is what we need, as well as the law and a minor tort.

I urge all of us here to proudly wield this law as a proactive instrument to increase freedom, to support those many young students who want to hear diverse opinions, and to cheer on those academics who refuse to be silenced or bullied. It is not often that I have reasons to be cheerful about legislation in this place, especially pro-freedom legislation. Sitting through the Online Safety Bill scares me to death in terms of free speech. But on this one, I think that the Government have got it right, and I am proud to say: hear hear, let us get on with it.

Lord Wallace of Saltaire (LD)

My Lords, this has been a long process for a Bill that started two years ago. There have been five changes of Secretary of State for Education since then, more changes of junior Minister, and a certain sense that many of us have had that some of the Ministers guiding the Bill through both Houses were not as enthusiastic about it in all its forms as some of their Back-Benchers were. I regret that we have this further amendment, which I do not think strengthens the Bill. The compromise we agreed last time was better and I was not happy to read the debate in the Commons, where it was evident that the Common Sense Group was doing its best to push back to put harder elements into the Bill.

I have spoken already about the colonisation of the right wing of the Conservative Party by the American Republicans and various other right-wing foundations there. I note yet again how Miriam Cates cited various American sources in her short speech. I note that James Sunderland made the positively Trumpian remark that one of the reasons why all these left-wing blogs were attacking people like him was that they did not like the truth, which was what, clearly, the Government ought to be standing for; Truth Social is, of course, Trump’s rival to Twitter.

We need to think carefully about what we understand by freedom of speech. Members of this House will have noticed perhaps the story in the Timesand“Newsnight” last week that the Cabinet Office had been looking back through social media posts of people invited to talk to senior civil servants there and cancelling the invitation if it was found that they had said things overcritical of the Government.

As the noble Baroness, Lady Fox, has just said, perhaps uncharacteristically, freedom of speech is about diversity of opinion—and it needs to be diversity of opinion. I remind Ministers and others of the excellent Second Reading speech from the Conservative Benches which also said that universities are “autonomous institutions”. Conservatives are in favour of the principle of limited government and limited intervention in the affairs of autonomous institutions, and we need to be careful how much the state intervenes.

We have now come clearly to the end. This is an unsatisfactory compromise but, as so often, that is where we end up. The appointment of the free speech champion is now key and I hope that our Ministers here will do their best to ensure that this is seen to be as fair and open and uninfluenced by those on the right as possible. The hints we get of that appointment suggest to me that things are perhaps moving in the right direction but, if this is going to work, it is important that it is seen to be fair and acceptable to all sides.

I remind the Minister also that our universities are a huge national asset and a very important source of invisible exports, and that the damage done to our universities by the appearance of wider state interference in their autonomy, rather than leaving them to manage their own affairs—making mistakes, as even the Government occasionally do, but managing things on the whole not too badly—would damage Britain’s reputation around the world and damage Britain’s economy.

I also just remark to Ministers and those on the Conservative Benches that one of the analyses of the local election results last week suggested that the sharpest decline in voting Conservative had come from people who were university graduates. That ought to worry Conservatives. To be seen as the anti-intellectual party should be a source of unhappiness to all except those who believe in the liberal elite conspiracy theory that Britain is somehow governed by an invisible elite of university graduates, BBC presenters, academics and the like.

Having said that, I accept that we are where we are. We have come to the end on the Bill and it is time to leave it as it stands. But I hope Ministers will take back that how this is implemented and, in particular, how the next appointment is made will make a great difference to the degree of confidence that universities’ staff and students have in how the Bill is applied and, in the longer term, to the value of their international reputation and national standing.

Lord Willetts (Con)

My Lords, we are now reaching the conclusion of what has been a long, time-consuming, complex process, and I think the process of revising and scrutinising this legislation has meant that we have ended up with a Bill that is better designed and stronger and more effective than when we started.

The further amendment which the noble Earl, Lord Howe, has introduced today, having been passed in the other place, recognises a genuine grievance. I can understand absolutely that, in some situations, you need an injunction to move fast. We heard from the noble Baroness opposite about this in a previous debate. The argument that there will be circumstances where an injunction will reinforce the freedom of speech is a powerful one.

I think the noble Lord, Lord Grabiner, was perhaps pessimistic. It will depend on decisions of courts as to whether there is a reasonable case for an injunction. I can certainly see circumstances where that is necessary, but anything more that the Minister can say about what those circumstances are would be very helpful.

I think all of us in all different parts of the House want to see universities functioning as places where people learn how to disagree. That is what we hope to see in our universities, and there is concern that they are finding it harder to discharge that role than they did.

Finally, can I just ask the Minister on three other specific points? First, there is a danger that this legislation has the opposite effect to the one intended and the panoply of regulation and legal challenge means that people try to go for the safe option of just not inviting outside speakers in the first place. It would be really helpful therefore if we tracked over time the number of outside speakers invited to and speaking at universities. Surely one simple and obvious measure of whether this legislation is working is whether the number of outside speakers rises or falls. If it starts to fall, we will have to look again. If it rises, we will be confident that the Bill has had the desired effect.

Secondly, I believe in the autonomy of universities. One of the strengths of our university system is absolutely that universities are self-governing bodies. That is what “universitas” means—self-contained and self-governing. The Minister will be aware that the ONS is now investigating the status of universities and whether they should be defined as entering the public sector. There are lots of ways in which the Government can expand the state, and one way is by intervening so heavily and so frequently that in reality these institutions become public institutions. It would be a disaster for the British model of higher education if our universities become part of the public sector. I hope the Minister will also give the House an assurance that the Government will do everything they can to ensure that this external assessment by the ONS—assessing how much autonomy universities have and whether they should be regarded now as part of the public sector—means that universities continue to enjoy the autonomy which ensures that they do not enter the public sector.

6.30pm

Thirdly, and finally, it would be helpful to know a bit more about the next steps, particularly the important nitty-gritty detail of the way in which the OfS will interpret the duty to promote freedom of speech. There is guidance to be written, which needs to be debated, considered and discussed. It would be helpful to hear from the Minister how that will work and what the timescale for it will be.

We wish this legislation well and all of us hope that, as a result, we see freedom of speech in our universities even more strongly protected than it is at the moment.

Earl Howe (Con)

My Lords, I am grateful to noble Lords for their questions and comments, which I shall do my best to respond to. I begin with the noble Lord, Lord Wallace, who made, if I may say so, a very gracious speech—I know that he has severe doubts about the Bill. I fully subscribe to his remarks about the need to preserve diversity of opinion in universities and about universities being national assets. The hope and belief we have is that these proposals will ensure the delivery of the cultural shift that can restore our universities to their position as the powerhouses of open debate and transformative thinking. But he is also right to say that much will depend on how the Act is applied.

Here, I think I can appropriately move to the comments made by the noble Lord, Lord Grabiner. He expressed his fear that the Bill as now drafted, if this amendment is accepted, will create perverse incentives and drive people towards the courts in the first instance. That is not the view of the Government. Injunctive relief, as I am sure he does not need to be told, is a discretionary remedy which may be used in limited circumstances where a court considers it just and convenient to order a provider, college or student union to take immediate—that is the key word there—action to remedy harm caused by a breach of their freedom of speech duties and where damages would not be sufficient. An example of that, as I mentioned, would be to require the reinstatement of a student who has been unlawfully removed from their course. We expect very few cases will proceed directly to court in pursuit of injunctive relief without first having exhausted the OfS or OIA schemes. The Government are clear that, aside from the injunction exception created by our amendment, the tort should be used only as a last resort where complainants are not satisfied with the outcome of OfS or OIA schemes.

I remind the House very briefly that the claimant in such a case would need to point to a genuine loss that they had suffered as a result of a breach of freedom of speech duties in Section A1 or Section A5 in order to bring a claim. We should also note that only a person specified in Section A1(2) could bring a claim. We therefore consider that they would do so only if they have suffered because of a breach of the duties, even if, for example, that loss is damage to reputation and not a monetary loss.

The noble Baroness, Lady Thornton, asked for clarification on the extent to which we feel the injunction would be resorted to. Emergency injunctions applied for in order to prevent a breach of the freedom of speech duty before it occurs would not be subject to the requirement to exhaust a complaint scheme first, since the schemes can consider only complaints of a breach that has already occurred. It is true that those who anticipate a breach of the duties can go directly to court to seek an injunction to prevent that breach occurring. Such a complaint could not be considered by the OfS or the OIA because there would be no breach of the duty to consider. However, we are now considering the situation where there has already been a breach of the duties. In most cases, the complaints schemes will provide the best route for redress as they are free to use, but where there is a need for a speedy remedy, we have decided that we should allow immediate access to the courts. The Bill is setting up a new OfS complaints scheme and establishing the statutory tort. This is about making sure that both new mechanisms mesh together in the best way possible.

My noble friend Lady Lawlor expressed her fear that an institution might delay a decision indefinitely and draw out the process. She may like to note that it will be for the Office for Students to make the rules for how the scheme will operate, which it will consult on. Paragraph 5(2)(b) of new Schedule 6A specifically refers to how it will deal with the internal review processes of higher education providers, as it may include provision in the rules about the issues to which she referred. The Bill states that the OfS complaints scheme may include provision that a referral under this scheme can take place only after the complainant has exhausted any internal complaints procedure of the higher education provider, college or student union. In the context of the injunction, that does not apply to applications to the court for such an injunction where a swift remedy is sought, as any delay caused by making an internal complaint would be too long in such circumstances. I hope that that is helpful to my noble friend.

I was grateful to the noble Baroness, Lady Fox, for what she said about the need for a culture change and, in particular, for highlighting the role of the director of free speech in the OfS. The director will bring critical external experience and knowledge from the higher education sector, and they will build strong working relationships between the OfS and the sector, providing strategic oversight for the freedom of speech programme and gathering insights from providers. We expect the flow of information to be very much two-way, and this will be critical to the OfS as it develops guidance for higher education providers, constituent colleges and student unions to help them comply with their new duties, including highlighting best practice. The OfS will be monitoring what happens.

I hope that provides an answer to my noble friend Lord Willetts, who has expressed fears all along that the Bill may in fact have the opposite effect from that intended and cause a cooling effect on universities which might otherwise wish to invite controversial speakers. We do not agree with that, but it is because the culture needs to change, and we believe we have the means to change that culture, that I think, hope and believe that his fears will not be borne out.

Reverting to the noble Lord, Lord Wallace, and indeed to my noble friend Lord Willetts, we wish universities to be thriving, autonomous centres of free thought, free speech and free debate, and the mechanisms that we are setting up today should be of assistance in promoting that. As I said earlier, if the House accepts this amendment today, we will have achieved the consensus required to enable the Bill to proceed to Royal Assent. I hope the House will do so, and implementation can then follow.

Motion A agreed.