Motion A Moved by Earl Howe That this House do not insist on its
Amendment 10, to which the Commons have disagreed for their Reason
10A. 10A: Because they consider civil proceedings to be an
important means of obtaining a remedy for breach of duties imposed
by the Bill. Earl Howe (Con) My Lords, I am pleased to be back
again to debate the Higher Education (Freedom of Speech) Bill. I
must express my thanks once again for the time and thought your
Lordships...Request free trial
Motion A
Moved by
That this House do not insist on its Amendment 10, to which the
Commons have disagreed for their Reason 10A.
10A: Because they consider civil proceedings to be an important
means of obtaining a remedy for breach of duties imposed by the
Bill.
(Con)
My Lords, I am pleased to be back again to debate the Higher
Education (Freedom of Speech) Bill. I must express my thanks once
again for the time and thought your Lordships have given to this
legislation. Members of the other place were particularly happy
to see the amendment banning the misuse of non-disclosure
agreements in cases of sexual abuse, harassment or misconduct, or
other bullying or harassment, as proposed by the noble Lord,
. I am grateful to
him for tabling this amendment as a very positive addition to the
Bill.
As your Lordships know, the tort has been by far the most
contentious issue during the passage of the Bill, but the
Government remain firm that it is vital for it to be included. I
recognise that the decision of the other place to reinstate the
tort as it was originally drafted, without amendment—including
the government amendments that were tabled in this House on
Report—has been of concern to noble Lords. I am very aware of the
strength of feeling in this House regarding the tort clause. I
have spoken to many noble Lords individually and listened
carefully to the points raised during debate. Ministers have also
had useful discussions since the Bill returned to the other place
last month and have given further consideration to what form the
tort should take.
Before turning to the amendment to the Government’s Motion tabled
by my noble friend , I shall set out once more
the Government’s rationale for the tort’s inclusion and offer
clarity on issues raised in recent ministerial engagement with
noble Lords. I believe that the possibility of bringing legal
proceedings is critical. We have said many times in this Chamber
that, where issues cannot be solved satisfactorily by other
routes, there should be an option to go to court. It is right
that cases can be brought, and the court has a range of remedies
at its disposal to achieve redress where it is concluded that
that is appropriate.
The tort is a crucial part of the package of measures brought
forward by the Bill to strengthen the law that protects freedom
of speech, with a robust enforcement mechanism as a solid
foundation for the new duties. Indeed, it is the view of some in
this House and indeed of numerous academics and other
stakeholders that, if the tort were removed, the Bill would not
have the necessary force to bring about the cultural and
behavioural shift necessary to prevent further erosion of freedom
of speech on campus.
However, I also want to be clear that including the tort in the
Bill will not create a free-for-all with cases being brought to
court without due consideration. Indeed, we expect the use of the
tort to be relatively rare, as indeed do those stakeholders who
strongly support its inclusion in the Bill. The vast majority of
complaints will be successfully handled by providers themselves,
through the free-to-use Office for Students complaints scheme or
via the Office of the Independent Adjudicator for Higher
Education. Examples of where the tort may be used include where
complainants feel that their complaint has not been resolved by
the OfS or OIA to their satisfaction. In addition, it will be
useful in the rare cases where a provider fails to comply with a
recommendation made by the OfS or OIA.
There has been a suggestion that the inclusion of the tort will
undermine the position of the OfS, but in fact the Bill will give
the OfS new wide-ranging powers to investigate when higher
education providers, colleges and student unions have breached
their freedom of speech duties. It creates the role of director
for freedom of speech and academic freedom, who will oversee the
new free speech functions of the OfS. The tort is intended to
complement those new powers, providing a backstop mechanism on
the rare occasions when it is needed. We expect that the courts
will generally be slow to overrule the OfS, as the expert in the
sector, and the OfS will find any court rulings helpful in
developing guidance and considering future cases.
Some noble Lords have expressed concern about the potential
implications of the tort for student unions, which they think
will not have the wherewithal, including the financial resources,
to defend themselves against threatened legal proceedings. It is
of course true that by bringing student unions within scope of
the Bill, and by giving them new duties, they will become liable
for breaches, but what is reasonably practicable for a small
student union will not be the same as what is reasonably
practicable for a large provider, an issue that the OfS and the
courts will have at the forefront of their considerations.
Examples of what is reasonably practicable include maintaining a
code of practice, having a room-booking policy that covers
freedom of speech appropriately and providing training to those
who have a relevant role.
Other noble Lords have expressed concerns about student
societies, a matter on which I believe I can also offer
reassurance. As I have said, student unions will have a duty to
take reasonably practicable steps to secure freedom of speech.
Importantly, student societies will not themselves be subject to
the duties in the Bill. However, those who run societies will be
subject to the codes of practice published by their provider,
college or student union. A failure to comply could result in
disciplinary measures.
Similarly, if a student society is affiliated to a student union,
those who run it will need to comply with the student union’s
rules. Therefore, if a society is holding an event on student
union premises, the student union’s room booking policies will
apply, as well as the code of practice. Measures should be in
place to ensure the society is aware of the rules that apply and
that action can be taken if these rules are broken.
This point is crucial: a complainant would have no course of
action against individual students or a student society. Although
they may consider whether they are able to bring a complaint
against a student union, the burden of proof will be on them to
show that the student union has breached its duty to take
reasonably practicable steps.
I also wish to address the point that some noble Lords have
raised about the potential for the tort to create a paradoxical
chilling effect, with providers, colleges and student unions
avoiding holding controversial speaker events for fear of
litigation. I want to be clear: the best way to avoid litigation
will be not to cancel events but to take reasonably practicable
steps to ensure that events can take place. There are provisions
in the Bill that are intended to encourage a culture change on
our university campuses, including a duty on providers and
colleges to promote the importance of freedom of speech. A
blanket policy of vetting all invitations and deliberately
avoiding inviting any controversial speaker could itself
constitute a breach of the duties under the Bill.
Finally, I turn to the amendment to the Government’s Motion,
tabled by my noble friend , which replicates amendments
tabled by the Government on Report in the Lords. This House,
carrying out its important constitutional function, opted to send
a clear message to the other place that it should think again
regarding the tort provisions. The other place, having thought
again, has returned an equally clear message to this House as to
the strength of its feeling that the tort should remain in the
Bill. I note that, to emphasise that, it was willing to reinsert
it without the government amendments tabled on Report in the
Lords. In the light of that strong view, I hope the House will
acknowledge that action by the other place and instead seek
consensus on an outcome that rightly recognises that the tort
should be retained but with some sensible amendments to clarify
and reassure in relation to the implementation of the regime.
Indeed, I thank my noble friend for his pragmatic engagement
on this issue, particularly in his acknowledgement that the tort
has a role to play in the new statutory regime. The Government
take the view of the House seriously and therefore support this
amendment to the Motion, assuming that it is moved, and I hope
that other noble Lords will do so as well.
The amendments provide an opportunity to give clarity about how
the tort will operate in practice. Our intention has always been
that the tort should be used as a last resort, with the majority
of complainants likely to rely on the free-to-use complaints
schemes. Similarly, only those who have suffered loss should be
able to bring a claim.
When the Government tabled those amendments back in November
2022, four months ago, the prevailing view from the sector and
stakeholders was that they offered a good compromise. However,
since then the issue has grown in importance, and controversy
about the application of the tort has sharpened. It is only right
that I share with noble Lords the concerns expressed to Ministers
since this issue was last debated in this House, particularly
from those the Bill is most designed to protect. In conversations
with academics, we have heard serious concern that their freedom
of speech is being quietly curtailed.
Given the strength of feeling from those who are genuinely
concerned that their jobs are on the line and academic freedom is
under attack, I have to be clear with noble Lords that this
concern may well be reflected in a move in the other place to
amend the Bill still further. I cannot presume to encroach on
conversations or proceedings in the other place, but in that
event it is only right that I commit the Government further to
explore possible opportunities to achieve consensus in the
Commons stages. I am therefore content to say that the Government
support these amendments. But given that those academics are at
the forefront of our minds, I am conscious that this matter may
not yet be finally settled, should your Lordships agree to my
noble friend’s amendments.
I hope that, alongside the assurances I have given today, noble
Lords are persuaded that the tort is a vital legal mechanism that
is necessary if we are to ensure that our world-class
universities are the home of plural debate. I beg to move.
16:15:00
Motion A1 (as an amendment to Motion A)
Moved by
At end insert “and do propose the following amendments to the
words so restored to the Bill—
10B: Page 6, line 22, after “A1” insert “that causes the person
to sustain loss”
10C: Page 6, line 25, after “A1” insert “that causes the person
to sustain loss”
10D: Page 6, line 27, after “A5” insert “that causes the person
to sustain loss”
10E: Page 6, line 27, at end insert—
“(2) 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.
(3) 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).””
(Con)
My Lords, I declare my interest as a visiting professor at King’s
College London and an honorary fellow of Nuffield College,
Oxford.
I warmly welcome the Minister’s assurances about how this
legislation will work. I particularly welcome his commitment, and
that of other Members of this House, to support the amendments in
my name. These amendments bear a striking resemblance to
amendments the Minister himself tabled, which we debated on 7
December. It is evidence of his common sense and wisdom that he
is supporting them now, as he did then.
I assure him that across the House, after many hours of debating
this important legislation, there is shared agreement that there
is a problem. Nobody is denying that there are egregious and
appalling examples in which universities and students unions are
not the safe spaces for free speech that we wish them to be.
Sometimes people believe that they should somehow be a safe space
from free speech, which is not what universities stand for.
There is also very strong support across the House for the Office
for Students as a tough and effective regulator. I pay tribute
particularly to my noble friend , who early on
intervened to make clear that it was the body that should have
the crucial role in this case.
The issue has been about tort. As we were told, this is not the
first time that Clause 4 has been the most controversial feature
of a piece of legislation. Many of us had a real concern that the
threat of civil litigation could have a chilling effect,
threatening the activities of student unions in particular. That
is why your Lordships’ House voted to remove Clause 4 from the
Bill. The other place has reinstated it and we have to understand
and respect that vote, but these amendments are a sensible
compromise to clarify the circumstances in which the tort
provision would apply. The litigant has to have sustained a loss
and have exhausted other complaints procedures, notably the
enhanced powers that this legislation gives to the Office for
Students. I am very pleased that the Government have reiterated
their support for those principles and recognised that this is
how this tort provision should operate—very much as a last
resort.
What these amendments would do is ensure that Clause 4 is very
sensibly targeted. They would make it workable. In particular,
they would remove the risk, which many of us on all sides of this
House are concerned about, that a university, or even more so a
student union, could find itself on day one receiving an
investigation letter from the OfS and on day two receiving a
lawyer’s letter threatening it with litigation. We thought that
that was not a sensible or reasonable way to proceed, and indeed
would obstruct the effective discharge of a regulatory function
by the OfS.
I welcome the assurances that the Minister has given. The debate
we have had on this legislation has been an excellent example of
the role of your Lordships’ House as a revising Chamber. It has
also reminded us of the shared values we have: a commitment to
freedom of speech and diversity of opinion.
(CB)
My Lords, I confess to be rather miffed by the Government’s
acceptance of the amendment of the noble Lord, , because it deprives me of
the ability to make the fire and brimstone remarks that I had
planned to make. However, I certainly welcome the Government’s
reaction to the excellent amendments of the noble Lord, , and can as a result be quite
brief.
On Clause 4, we have really come full circle and are back where
we started. As has been pointed out, in our debates Clause 4 was
subjected to many serious criticisms by noble Lords across the
House, and I will not repeat them. In the face of those
criticisms, at Report in this House the Government accepted a
clarifying amendment from the noble and learned Lord, , which incorporated a
reference to damages in Clause 4. In a further attempt to meet
these criticisms, the Government brought forward their own
amendment, as the Minister has pointed out, which gave priority
to the regulatory regime and deferred the ability of a private
claimant to deploy Clause 4, pending those regulatory procedures
being exhausted.
I respectfully urge your Lordships to support the amendments put
forward by the noble Lord, . As to those amendments, the
loss point would clarify and emphasise the need for proof of
damage as a condition for making a Clause 4 claim. It would deter
some frivolous claims, and to that extent would be a valuable
amendment.
The priority point in the amendment of the noble Lord, , is perhaps rather more
important. The OfS will have extensive regulatory powers for
dealing with an offending student union. Clause 7 would amend the
Higher Education and Research Act 2017, whereby the OfS would be
obliged to monitor student unions’ performance of their new
duties. Importantly, the OfS would also be empowered to impose a
financial penalty on a student union and seek an injunction in
court. Common sense suggests that the Bill would be significantly
improved if priority were given to the regulator and claimants
were not able to invoke the private law cause of action until the
regulatory function had been performed and completed. This was
the Government’s view just a few weeks ago, and I am absolutely
delighted that it still is their view—at least in this House.
If I may, I want to briefly draw attention to the email from
Ministers which arrived while we were in the Chamber but before
this debate began. I will reference the end of the sixth
paragraph, which is a point to which the noble Lord adverted when
he opened this debate just a few minutes ago. The letter says:
“Those affected by the Bill are at the forefront of our minds and
it is only right that we reflect that the Government may wish to
explore further opportunities to achieve consensus when it
returns to the Commons”. The only point I want to make about that
is this. The implication of what is said there, and of what the
Minister said at the Dispatch Box, is that there may be
amendments in the other place that will take away the amendment
that I hope we are now going to support, possibly without even a
Division. My concern is this: I believe that that would not be a
sensible thing for the other place to do.
I would urge one point: if there are felt concerns in the other
place that are not satisfied by these amendments, a more
appropriate route to be undertaken would be directed towards the
regulators, rather than to diminish the quality of the amendment
that I hope we are about to make. The regulators are very
powerful—they have strong powers in the statute and in this Bill.
In my view, the correct party to be concerned with in dealing
with the kinds of concerns that trouble everybody in the story,
and the proper starting position, is the regulator. That is what
the regulator is there for. It would not be right, in my view, to
undermine the quality of the amendments that have been put
forward in respect of this provision without first facing the
possibility that the regulator ought actually, if I may be blunt
about it, to pull its finger out.
(Non-Afl)
My Lords, I was all ready to welcome the restoration of the
original Lords amendment to this Bill by the noble Earl, Lord
Howe. Previously, I was despondent that we had passed legislation
with no teeth, which was potentially a lame duck law, so I was
delighted with the reinstated, stronger statutory tort in the
Bill that would mean staff and students would have a robust
backstop that allowed the ability to sue in the civil courts for
breach of their speech rights. In explaining the change, the
Minister said he has spoken to many noble Lords. But I am rather
taken with the words of the Under-Secretary of State for
Children, , who noted that she had
spoken to many leading academics and that they shared her belief
that the tort was necessary to secure cultural change on campus,
and that that is why she had introduced the amendment I was
prepared to welcome. I can ask only what on earth has changed,
other than that the Minister has spoken to noble Lords rather
than to leading academics or students.
It is disappointing that we are now being asked to accept a
fudge, in the form of the amendment from the noble Lord, . I fear it will mean that the
new, enhanced free speech duties will be viewed as more
box-ticking by university managers and student union
bureaucrats.
Perhaps I can share my own recent lived experience—to use the
fashionable jargon—of being cancelled. I hope at least my remarks
will be heard by those in the other, elected place when they
consider this debate. Last year, I was delighted to be invited by
the University of London’s Royal Holloway debating society to
give a talk this February. It was a lovely invitation, from a
student called Ollie, who wrote: “We would absolutely love for
you to speak to the society about your interesting career, and to
talk about the Academy of Ideas and the House of Lords to our
keen crop of debaters.” Never one to miss a chance to meet and
talk to a keen crop of debaters, I set a date firmly in my diary
and I reorganised a number of clashes.
Unbeknown to me—though this has become routine these days for
student societies—behind the scenes the debating society had to
go through onerous and bureaucratic checks imposed by the student
union on whether I would be given permission to speak. Student
unions these days have created a veritable cottage industry in
safeguarding checks, risk assessments, et cetera. It was a
complete pain for the students and time-consuming, and with an
undoubted chilling effect on inviting outside speakers. That is
what this Bill set out to address, was it not?
Eventually, I was given a clean bill of health by the student
union. Apparently, there was no evidence that I was a hatemonger
or a threat. However, just a week before I was due to speak, the
debating society cancelled. What happened? Once the event was
advertised, the same student union bureaucrats claimed that six
societies had raised concerns about me coming on to campus, the
evidence for which was that I retweeted a clip from a comic on
Netflix. Maia Jarvis, the president of the student union, wrote a
menacing message to the debating society, stating:
“I hope that you can see that Claire Fox retweets and praises a
video of Ricky Gervais being overtly transphobic. I wonder if you
have thought about the impact of bringing a person who is an
advocate for hate towards trans people and publicly ridicules
them. And whether you are comfortable with the fact that that is
the message your society is sending out to RHUL trans
students.”
16:30:00
Beyond the slanderous accusations against me—of course I am not
an advocate for hate towards trans people or anyone else—I was
slightly miffed that my crime was retweeting Ricky Gervais. Is
that it? Have they never listened to any of my speeches here in
the Lords? But seriously, this email, and a lot more messages of
its type from the student union, which is supposedly impartial
when judging outside speakers’ political views, was used as a
form of coercive control and pressure to badger the debating
society committee to cancel my talk, based on the specious slur
that I have a history of sustained hate speech.
The message to the debating society was clear: my presence on
campus would cause trouble and damage the reputation of the
debating society’s officers. Indeed, when Adam, the president of
the debating society, emailed to cancel the event, he
admitted:
“I’ve decided to cancel for the sake of the future of the society
and its reputation on campus … It is the only option I have at
this point to protect the committee and the society for the
future.”
He had been through the mill at this point. But he explained, and
this is key:
“After back and forth with the SU, it seems that they will find
any way to make your visit onto campus an issue of student safety
and wellbeing. I see it as nothing less than bullying.”
That is the point: the student union bullied a society into
disinviting a speaker it wanted to listen to. This is not about
me. Yes, okay, my freedom of speech was curtailed, but much more
significantly, although the student union did not formally cancel
the talk, its hostile reactions created a situation in which
students who were keen to hear different opinions were denied the
right to do so on a university campus.
Omar, a PPE student who was then speaker of the house at Royal
Holloway’s debating society, explained that he and his fellow
students had worked extremely hard in organising the event and
followed every procedure possible, but after all that they were
“basically strong-armed” to cancel the talk. He then
declared:
“I am determined to fight this, as the principles of free speech
are something I care about deeply.”
How gratifying that students do. He asked if I might have any
suggestions for people to contact or actions to take. At present,
if a student union acts unfairly the only recourse open to a
student or society is to ask the university authorities to step
in. But to be honest, in the case of RHUL, this would not have
helped.
Indeed, one of the most dispiriting aspects of this sorry affair
was the response of Royal Holloway’s principal, Professor Julie
Sanders, who, in a reply to the Free Speech Union, which took up
the case on behalf of me and Omar, effectively said, “Nothing to
see here”—a real abdication of responsibility with an “all
procedures were followed” response. She took at face value the
student union’s claim that no pressure was applied to force the
debating society to change its mind about the event, even
claiming that the student union was
“ready to work with them to make the event happen safely”.
Can I just state here that I am not and never have been a threat
to the safety of any student?
Interestingly, the principal stressed that she was aware of the
very legislation that we are discussing today and assured the FSU
that the university, working with the student union, had
considered these requirements in detail. If she has studied this
legislation in detail and her response is “Nothing to see here”,
you might wonder whether this legislation will make any
difference. If she thinks the law would cover her letter as a
sufficient response, we need to harden up this legislation so
that university managers go beyond “considering” and make
academic freedom a real core value of the institution.
Why did the principal not seek out the debating society and talk
to Omar, Olly or Adam? I invited a small delegation in here for
tea and cake. We talked through the issue, and their frustration
and anger were totally real. One young woman, who described
herself as a trans ally, and always believed that cancel culture
was an exaggerated, culture wars trope, told me that she knew I
had bigoted views but that they were not that bad and at least I
was tolerant. She came to see me and said that she was horrified
at events. She said that she would have taken me on in the
debate. It was a debate about belief; that was the very point of
inviting me in the first place—that we would have a debate and a
discussion.
This Bill will remedy some of the problems but it does not only
compel student unions, for the first time, to secure freedom of
speech. It also requires that those student unions adopt a code
of practice setting out how speaking events are to be arranged;
we have heard the details of that. If, as in this case, a student
union exerts improper pressure to get an event cancelled, the
students and speakers can complain to the appropriate
regulator—as we have heard, the free speech champion—who will be
equipped with appropriate expertise and enforcement powers.
For me, that threat of civil litigation reintroduced into the
Bill by the Government in the other place is what was required as
a deterrent. That would have helped to ensure that free speech
was taken seriously by bureaucrats who run universities or
student unions. It is disappointing to me that government
Ministers here have folded, and under far less pressure than
Royal Holloway’s debating society. I am opposed to the amendment.
I hope that the other place will think again about us thinking
again when it gets to consider the decisions taken today.
(Con)
My Lords, what the noble Baroness, Lady Fox of Buckley, has just
said emphasises the main point I wish to make: that this applies
to students just as much as to academics. The whole idea of
freedom of thought is really important. We are bringing up our
children to think that they must curtail their thought. I have a
daughter at university at the moment and that is certainly her
experience. The atmosphere of not being allowed to discuss and
talk about things is prevalent. The Bill is really important in
making a difference to that. I will be very interested to see
what Members in the other place think of the amendments we send
down to them.
We should not think that this is happening just in universities.
On 8 March I received, as other noble Lords might have, an email
from the parliamentary security vetting department asking us to
fill in and sign a form. It said that we must not share
passwords, override or undermine security measures and sensible
things like that. But it then went on to say that we must not be
offensive or put the reputation of Parliament at risk. I do not
know how to survive in this place without doing both those
things; I imagine that applies to other noble Lords too. Our
freedom of speech is now to be curtailed by a directive from
parliamentary security vetting without—so far as I can see; I
have contacted the authorities without getting any reply—any way
in which noble Lords can be involved in that process. I am not
sure who will take me to task for being offensive in this place,
but I find offensive the idea that I should be asked to sign
saying that I will not be.
(Lab)
My Lords, I am not sure that I am going to be offensive; I now
feel that my presentation is lacking as a result. Let me at once
declare an interest. I was the general secretary of the
Association of University Teachers in times when the issue of—and
necessity for—freedom of speech in universities was regarded as
one of their paramount responsibilities.
I readily agree with the noble Lord, , who said that that is
fundamental to almost all of us who have been concerned with
higher education. I appreciate what the Minister has said; this
has been a very solid development. I also support the amendment
the noble Lord, , introduced, for much the
same reasons as the noble Lord, .
I feel a sense of disappointment and sadness on behalf of the
noble Baroness, Lady Fox. It is obviously never pleasant to be
invited somewhere and then told you are not going to speak, but I
urge her to get over it. The truth is that when you go into
academic climates and start talking to academics, you are going
to find—rather like with lawyers—that a large number will agree
with you and a large number will disagree. They will tell you
that with all the spitefulness, generosity and so on while they
do it.
I have come across a lot of academics who want to make sure that
the world of universities does not automatically become subsumed
in a world in which people pursue litigation against one another,
rather than try to resolve things through more sensible routes.
It was bound to end in a reasonable compromise, and I think the
Minister put that very fairly and very well.
In welcoming these developments, the academics who have bothered
to get in touch with me have told me that the kind of change we
are contemplating today is the kind they would find easiest to
live with. They are more and more—probably in part because of the
debates we have had—sympathetic and attentive to the problems
that have been created by cancel culture. I used to cancel my own
culture when I was a lecturer, largely by giving very erudite
lectures on obscure mathematical problems. Very few people
enjoyed them. There is only so much multiple regression you can
hear about before you conclude that you should take yourself home
because no one is going to be that interested, but it was what I
was teaching.
That is why I say to the noble Baroness, Lady Fox, that of course
some people will be uncharitable and malevolent, but it is
something we can get past with a sensible compromise of the kind
we have seen—particularly in the light of the reservations the
noble Lord, , has about it.
(Non-Afl)
To clarify, as I stated earlier—this really is important—I do not
have a right to a platform and I do not care if people disagree
with me. I do not mind if students invite me and then disinvite
me. All I care about is if students are bullied into disinviting
me. It is for the students that I made the speech, not for
myself. Who cares about my feelings? They are of no
relevance.
My point is that many academics and students have looked to this
Bill and the amendment. The noble Lord, , has talked to people who
want the compromise. I have talked to people who think it is a
fudge. Let Parliament decide—fair enough—but I do not think
anyone can claim they have spoken to all the academics, and this
is the only answer. I think that this is a cop out.
(Con)
My Lords, I just say to the noble Baroness, Lady Fox, that
strictly speaking there should not be any interventions at this
stage of the Bill.
(Lab)
Because we are not having that kind of iterative debate, I will
refrain from making the point that I am not saying that I spoke
only to academics who took the same view I might take. I am just
saying that if you speak to academics, you will hear as many
views as the number of academics you speak to; that is in the
nature of the business.
I welcome the process we have gone through because it has alerted
people to a very significant problem. A few days ago in your
Lordships’ House, I heard somebody say that trigger warnings were
now being attached to reading lists of some of the great classics
from the English oeuvre. I was just about to embark on a
re-reading of Northanger Abbey. If anybody has any advice for me
about dangerous pages that I should avoid, I should be extremely
grateful to hear it, because I would hate suddenly to find my
entire spiritual underpinnings removed while reading Jane
Austen.
This debate will leave a legacy. It will make everybody more
attentive to the risks to free speech and academic freedom, and I
am not at all sad that we have gone through the process if that
is the outcome.
16:45:00
(Con)
My Lords, I am conscious that, as a Conservative Back-Bencher
loyally supporting the Government in season and out, I am
probably a Member of this House worthy of least consideration
when it comes to discussing the contents of this Bill. Despite my
having taken part at every stage in its progress so far, I think
I am forgiven for being somewhat confused.
We started out with a proposal for a statutory tort, which I am
going to call “hard tort”. I turned out to support it, not only
out of loyalty but because I strongly believe in it. On Report,
recognising that there were some concerns about it, I had the
privilege to table an amendment that had previously been tabled
in Committee by my noble friend , which would have retained
the tort but allowed a judge to stay proceedings and instruct
mediation to take place. I thought that a good compromise that
could have been accepted, and I am going to call that “middle
tort”.
However, my noble friend the Minister pre-empted me to some
extent by coming forward with a proposal which allowed the tort
to be accessed only after every possible complaints procedure had
been exhausted; we might call that “soft tort”. Your Lordships’
House voted for “sort tort”, and then went with the noble Lord,
, and voted to remove the
clause all together in addition, which we can call “no tort”.
Today I have turned out loyally, because I am encouraged to do
so, in order to vote for “hard tort”. Here I am, and with only
half an hour to go I see that the noble Lord, , has now moved to the “soft
tort” position and I am expected to give my support to it. So
this is not simply a question of “how do you manage your
team?”—that is a minor consideration and purely a whipping
matter—but of what it is we are actually saying to the world with
these goings on.
The noble Lord, , said that the important
thing here is that the Bill sends a signal to universities. It
does in my view send a signal to universities: that this
Parliament and this Government are not as concerned about how
universities conduct themselves to maintain freedom of speech, as
a principle and as an activity, as the Government originally said
they should be. That is clearly the signal it sends, and as I
have said before in Committee, strong emphasis is being placed on
the role of the regulator because regulators are subject,
wherever they appear, to capture by those being regulated. That
is very much why those who support this, and the university
leaders, are very comfortable with it.
Like the noble Baroness, Lady Fox of Buckley, I note that in the
various choices between “hard tort”, “mid tort”, “soft tort” and
“no tort”, at the end of this debate we will still have no idea.
My noble friend has said that when it returns to the Commons, as
it must, there will be scope for further compromise. Who knows
what is going to come back—“hard”, “mid”, “soft”, nothing?
Anything could come back to us from the Commons because clearly,
the Government do not know what they want to do about this.
I strongly suggest to noble Lords that not only have we
misconducted ourselves, as far as the management of this is
concerned, but we are sending a very poor signal. It is most
regrettable that we will agree to the amendment in the name of my
noble friend today. Like the noble
Baroness, Lady Fox of Buckley, I very much hope that, when the
Bill comes back from the Commons, someone will have found their
backbone and the tort will have been restored.
(Con)
My Lords, I apologise that I did not speak in the earlier debates
on this matter because, as I recall, I had not made my maiden
speech. I simply add my voice to those who regret my noble friend
Lord Willetts’s Motion A1, which I do not support because, as
other noble Lords pointed out, it waters down the small
protection that existed with the original Clause 4 for academics
in many institutions.
An institution has great power: it has powers of office, of man
and woman power, of employment and of funds. The original Clause
4 gave a simple and cheaper way for an individual academic who
was suffering because his or her freedom of speech was under
threat. I assure noble Lords that it is under threat in many
universities, and especially the one I know best: my own
university, Cambridge. Hardly a day goes by without threat after
threat reaching the newspapers of academic freedom being impinged
on. I draw noble Lords’ attention to Arif Ahmed’s publications
and submissions to an earlier Committee on the Higher Education
(Freedom of Speech) Bill. The problem has not stopped.
For those reasons, I am worried about Motion A1 going through. It
will make life much more expensive for individual academics, who
often plough a lonely furrow against top-heavy and powerful
institutions. I would like to restore the original Clause 4,
which gives a straightforward and cheaper alternative to someone
taking action against an institution. I do not believe that there
will be vexatious causes that involve universities or
institutions in long and litigious claims that cost money and
time, because existing law covers these matters in many respects.
Cheaper claims can be dealt with under protocols before action or
by agreement.
So Clause 4 is necessary not only for free speech but for free
thought. It is not just about student union bodies, although they
should observe this; it is about how academics pursue their
subjects and whether their reading lists and courses are in line
with official thinking—universities have a powerful officialdom.
For those reasons, I remind my noble friend of his having to be smuggled
into the University of Cambridge not many years ago. I do not
believe that my noble friend’s amendment would prevent that
happening again. I thank noble Lords for their attention.
(LD)
My Lords, we have demonstrated that there remains a range of
opinion about the nature and size of the problem, and the
appropriate response to it. Therefore, a compromise amendment is
perhaps the best point for us to end up at. Some of us feel that
this is an unnecessary intervention into the autonomous
institutions that are our universities, and conservatives are
supposed to believe in the autonomy of institutions and in not
promoting undue state interference. I remind those on the
Conservative Benches that, if you are in favour of a smaller
state and deregulation, particularly of banks and companies, you
should be careful about how much you are in favour of detailed or
excessive regulation of autonomous bodies like universities.
After all, our universities are very highly rated in global
terms; they are an asset to this country. , when he was Prime Minister,
used to talk about them as one of the major planks of our soft
power in the world. We need to be very careful that we do not
damage them.
Listening to the noble Baroness, Lady Lawlor, I was thinking of
my time as an undergraduate at the University of Cambridge, and
the behaviour then was, in some ways, not entirely different from
the way it is now. I recall the occasion when my wife and a
number of other Oxford students prevented an ambassador from
speaking at an Oxford student occasion, and of my first year as a
university teacher at the University of Manchester, when a number
of students blocked the Secretary of State for Education from
speaking at a university event. These things are not entirely
new.
As the Minister suggested, we have of course seen a number of
cultural changes. While the cultural changes mean that
universities have become more sensitive to student opinion
because student funding has changed, another change is that
social media has widened the debate about what is acceptable. It
has imposed, from different directions, the new cancel culture
among the young, which we did not have in my generation and in
most of the time that Members of this House were at university.
We all have to face that problem—it is not solely a university
problem—and we have to answer it at the levels of political
leadership and of society. I very much hope that, when the Bill
returns to the Commons, the decision on this will not be
reversed.
When we talk about culture, I am concerned about those who talk
about a culture war. I have read two op-eds in the Sunday
Telegraph in the last month which have suggested that the pursuit
of a culture war is the way for the Conservatives to win the next
election, and that they should imitate the example of Governor
DeSantis of Florida, who is pursuing, so the articles argued, a
successful culture war against wokeism, cultural Marxism and the
universities of his state. I know that there are some on the
right wing of the Conservative Party who would like us to go down
that route, but it would be a very dangerous route. We do not
want this country to become as divided a society as the United
States has become, in which a governor educated at Yale and
Harvard now says that he was exposed to communist ideas as an
undergraduate at Yale—I suspect that that is a slight
exaggeration—and who thinks that the way to ensure his path to a
presidential nomination is by dividing the country between the
educated and those who do not have higher education. We do not
need that in this country, and it would be extremely dangerous
for ring-wing Conservatives to try to take that direction.
On a different level, I find the argument that we should pass
Bills so that we send a signal a rather worrisome idea; I think
that we should pass Bills so that they actually do something,
that they enforce something and that they change the way in which
we behave. Sending signals is something which political speeches
should do—not Acts of Parliament.
I ask the Minister about the time of the implementation of the
future Act, now that the Bill has been delayed somewhat; it will
clearly be delayed again by going back to the Commons. I hope
that he can confirm that there will be no attempt to implement
the Act in full by the beginning of this coming university year,
because it will take universities some time to consider it. He
may not be able to give me an answer at the moment, but that is
an important fact that we now need to have addressed.
I hope that the Minister also takes note of some of the
criticisms which the Committee on Standards in Public Life and
others have made about the appropriateness of appointing
committees. We heard the noble Lord, , discuss regulatory capture,
but we have also heard those who oversee public appointments
committees talking about the inappropriateness of people who know
very little about the subject for which a person is being
appointed deciding on the nature of the appointment. There is a
balance—which I hope the noble Lord, , will accept—between
regulatory capture and political appointments being made for
political reasons, which is important when one is considering
such a major asset to this country as our universities.
I welcome the Government’s acceptance of this amendment. I very
much hope that the Common Sense Group and others on the right
wing of the Conservative Party will not attempt to take it back
when it comes to the Commons and that the Government will
re-establish a relationship with our universities, both staff and
students. The relationship between free speech for students and
free speech for staff has, on occasions, been muddled in all our
debates on this Bill. I hope, therefore, that this Bill as now
amended will become law.
17:00:00
(Non-Afl)
My Lords, I listened with great interest to what the noble Lord,
, had to say and I sympathised
with the anguish he felt as a loyal Conservative supporter trying
to deal with the problem the Government have presented him with.
As a non-affiliated Peer I do not have that problem, but I share
his anxiety about what the Government have done as it seems very
vacillating and unhelpful.
I draw noble Lords’ attention to the famous words of that no people of the same trade
are ever gathered together, even for diversion or merriment,
without at some point conspiring against the public. It is lovely
to have so many noble Peers in this House who hold or have held
high positions in universities and university
administrations—chancellors, vice-chancellors, professors and all
the rest of them—but overall they constitute an interest. Their
interest, naturally enough, is to believe that they are right,
universities are well run and the critics are wrong. I ask them
perhaps to consider that none of this would have come about if
universities were being well run. These freedom of speech issues
are very important and need some bolstering. When so many noble
Peers who are associated with universities challenge and reject
that, they must be conscious not to behave like trade union
leaders in the 1980s who were defending powers that, it became
clear, were unacceptable.
(Lab)
As a former trade union leader I am a bit hesitant to contribute,
but let me just say to the noble Lord, Lord Moore, that what has
been excellent about our consideration of this Bill from Second
Reading through to Committee is how, through excellent scrutiny,
we have tried to reach a consensus, not a compromise. That is the
important thing. On Report I confessed that I had changed my mind
about the need for this Bill. I accept that better, more
effective regulation will help to change culture in a more
sustainable way. All this emphasis on tort does not really help
the real problem that we have heard described.
I will be brief. I appreciate the comments of the noble Lord on
non-disclosure agreements—a key element in terms of openness and
transparency. The duties and responsibilities of the regulator,
and how they are applied, will be important; I accept that
universities need time to properly do that. But they have been
developing good practice and best practice. They have
responsibilities to freedom of speech, and I absolutely support
that. I stress that the Opposition’s approach to this Bill has
been totally non-partisan. I have supported the amendment from
the noble Lord, . I have certainly encouraged
him because I have listened across the board as we have moved
through each stage, and I think we will end up with a better
Bill. In fact, with the consensus that has been reached, we now
have a better Bill.
Despite some of the Minister’s concerns about what might happen
down the other end, across this House and across all political
parties we have reached a consensus; let us put the matter to
bed. With our non-partisan approach, I assure him that the
Government will have the Opposition’s support on their support
for the amendments from the noble Lord, . We can safely say that this
Bill shall pass, and it will pass to defend the freedom of speech
values that we all share. That is an important step that we can
make.
I hope that the Minister will feel reassured about our approach
to this Bill and how we have listened, changed our minds and
supported very important consensus changes, which I think will
ensure that all academics and university institutions will
support this legislation.
(Con)
My Lords, there is little more for me to say, other than to thank
noble Lords for their contributions to this debate and for the
way in which, amid many doubts and hesitations, Members of the
House have been willing to look for compromise and common ground
on what I know has proved a difficult set of issues.
I thank in particular the noble Lord, , especially for his positive
comments and remarks on the role of the regulator, as well as my
noble friend , the noble Lord, , and, for his words about the
need for us all to look for consensus, the noble Lord, Lord
Collins.
I simply say to the noble Lord, Lord Wallace, that I too
instinctively fight shy of the suggestion that Governments should
unduly interfere with the workings of our universities. However,
some of his remarks suggested to me that he does not accept that
there is a serious problem to be addressed. If that is his view,
I believe that he is in a minority in this House.
(LD)
I think we have a large social problem, which has been partly
raised by social media, in the intolerance of the young as a
whole and cancel culture. It stretches across our society and we
have to deal with it, but it is not purely a problem for
universities, nor is it thoroughly based in universities—and it
certainly does not result from indoctrination by left-wing
staff.
(Con)
I am grateful to the noble Lord, but I think we all agree that
universities, par excellence, are places that should be safe
spaces for freedom of speech, as my noble friend said, whatever may happen
outside the confines of the campus.
As to the timing of the coming into force of the Bill, I can tell
the noble Lord that it will not be before the start of the next
academic year. The Government need to consult on the regulations
and indeed draft them, which will take a little time.
I simply cannot agree with the noble Baroness, Lady Fox, that my
noble friend Lord Willetts’s amendments represent a fudge—in
other words, a watering down of the tort or a “soft tort”, as my
noble friend put it. With respect to my
noble friend, I utterly disagree with him that the amendments
send a signal, or any semblance of a signal, to the other place
or the world that the Government are not serious about protecting
freedom of speech in our universities. The idea of watering down,
I suggest, is more theoretical than real.
As I said earlier, the vast majority of complaints will be
successfully handled and dealt with without any need to go to
court. However, where a complainant believes that that has not
happened, they will still have the option of going to court. In
other words, the amendments from my noble friend underscore what we think will
happen anyway.
I hope that Members of another place will come round to that view
and that both Houses of Parliament will reach the endpoint that
Ministers and the Government have felt it their duty to try to
achieve, which is consensus.
(Con)
My Lords, I want briefly to reflect on the important points that
have been made. First, I think there is widespread recognition
that there is a problem. Of course I understand the problem; I
have been on the receiving end of exactly the kind of threats to
freedom of speech that this law is trying to tackle. I have seen
student unions protect my right to speak and I have seen student
unions collapse under pressure to not allow me to speak. I have
seen universities that have done their best to enable me to
speak, even with shouting and jeering and protests outside, and I
have seen universities cravenly collapse under pressure to not
allow me to speak. I am absolutely aware of the issue, as I think
Members across the House are. However, at no point when I faced
these protests did it occur to me that the way to solve the
problem was for me to have the right to sue somebody. That is the
issue: what is the best way to deal with the problem?
I have to say that the path of the past decades has been to
increase the power of regulation. The noble Baroness, Lady Fox,
made a passionate intervention that began with a description of
the bureaucracy involved in trying to prove that she was not a
hatemonger. I am speculating, but I think I know where that
bureaucracy comes from: it is the Prevent initiative. I remember
my conversations with officials in the Home Office who said to
me, “There are extremists being invited to speak at universities
and we need to have a process to make sure extremists who will
stir up hatred are not allowed to speak”. I remember meetings
with Home Office Ministers where, if I may say so, it is possible
that I made some of the points that the noble Baroness made. But
the pressure was, “We cannot allow an unregulated approach; we
need to know who these speakers are so we can check if they’re
potentially going to infringe the law”. That, I suspect, is the
origin of the bureaucracy. That is where it started, over a
decade ago.
The noble Baroness recently had the shocking experience of not
being able to speak at Royal Holloway college. But I do think
that here she does this legislation a disservice. Faced with the
problems she encountered, is it really the case and is she really
confident that suing the student union, which is where the legal
process would have started—and, clearly, she had some sympathy
for the student union and the pressure it was under—is the way to
resolve the problem?
The Bill envisages—and I have to say that Ministers have made it
clear throughout that this is the way they see the Bill
working—that, if the noble Baroness encounters a problem such as
that, her first port of call is the Office for Students. I heard
in several interventions noble Lords say, “It’s a patsy”, “It’s
producer capture”, “It’s the university friends”. I would invite
noble Lords on all sides of the House to read, for example, the
recent letter of complaint from universities about the OfS,
saying precisely that it was too aggressive, that it was not
working with them and that it was a heavy-handed regulator. The
idea that the OfS is some kind of patsy that has been put up to
put off any intervention is a complete misreading of the powers
that it already has under legislation steered through Parliament
by my noble friend and that are now
enhanced by this legislation.
If the powers prove still to be inadequate—if someone still has a
grievance even after the Office for Students and the OIA have
investigated a complaint—at that point they can go to law; that
is what these amendments, originally proposed by the Government
last year and now proposed and brought before the House by me and
others today, ensure. That is not some feeble abandonment of a
commitment to freedom of speech; it is the right way to
proceed.
This legislation is a powerful further intervention; it makes the
legal framework absolutely clear. It means that any Member of
this House, or any citizen who faces a challenge to their right
to speak at a university, will know there is someone at the OfS
who has an explicit legal responsibility for protecting their
rights to freedom of speech. That is a very powerful provision,
rightly reinforced, but only if the regulator fails by a power of
tort as well. Therefore, I hope the House will support the
amendments in my name and in the names of others in this
House.
Motion A1 agreed.
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