Higher Education (Freedom of Speech) Bill

Lord Grabiner Excerpts

Consideration of Commons amendments
Tuesday 21st March 2023 Lords Chamber

[Lord Willetts (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 Lord Johnson of Marylebone, 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.

[Lord Grabiner (CB)]

My Lords, I confess to be rather miffed by the Government’s acceptance of the amendment of the noble Lord, Lord Willetts, 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, Lord Willetts, 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, Lord Etherton, 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, Lord Willetts. 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, Lord Willetts, 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.

[Baroness Fox of Buckley (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, Claire Coutinho, 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, Lord Willetts. 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.”

Higher Education (Freedom of Speech) Bill

Lord Grabiner Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

I am grateful to my noble friend Lord Willetts for tabling his amendments that brought this issue to light. I believe that this minor change to the wording of the Bill will help to make it clearer to understand and to use in practice. I hope that the House will agree. I beg to move.

[Lord Grabiner (CB)]

My Lords, I have just a very brief point. I welcome, in particular, the amendments brought by the Government in relation to the meaning of the word “member” in this context. That is an extremely sensible development in the drafting of the Bill. All that I would say is that, certainly in Cambridge, there is not simply an adoption of the assumption that alums are known as members, but that fact is frequently recorded in the statutes of the particular college. It may well be worth reflecting this amendment in the code of practice in due course, so that there can be absolute clarity that the Bill makes this important distinction between what the college statute may say and what the legislation says.

[Earl Howe (Con)]

My Lords, I thank the noble Lord, Lord Grabiner. I think that is an extremely helpful suggestion which I will ensure is duly noted.

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[Lord Grabiner (CB)]

My Lords, I agree with the comments and observations made by the noble Lord, Lord Hunt of Kings Heath, the noble Baroness, Lady Morris of Yardley, and others on this amendment. But I do not support it, simply because I think this is an extremely good example of something that needs to be dealt with carefully in the code of practice. A clear distinction should be made between what one might call a genuine heckle, as opposed to an attempt to drown out or silence a speaker.

I well remember that when I was an undergraduate at the LSE—donkeys’ years ago now, I fear—the history society very unwisely invited the National Front to come to give a presentation. We filled the room out very fully before these people arrived. When the chairman of the National Front, with two or three hoods in close association with him, walked into the room, one heckler shouted out, without any intention to drown out what was about to happen, “Have you been circumcised?” It really brought the house down, and it destroyed the speaker. A good heckle is well worth preserving, but I think it should be dealt with in the code of practice and definitely not in primary legislation.

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[Earl Howe (Con)]

My Lords, the Government have tabled Amendments 17, 18 and 19 in response to an amendment tabled in Grand Committee by the noble and learned Lord, Lord Etherton. These amendments make clear on the face of the Bill what we have maintained is already the case: only a person who has suffered a loss as a result of a breach of the specified duties can bring a claim before the courts. This is not limited to pecuniary loss and could include damage to reputation, for example. I am happy that we can make that clear.

Amendment 20, tabled by the Government, provides that claimants must first have exhausted the complaint procedure of the OfS or the OIA before they can bring proceedings under new Section A7. Both Policy Exchange and the Russell Group have called for an amendment along these lines as a considered and proportionate response. This amendment will mean that a complaint on the same subject must have been made to either complaint scheme, and that a decision must have been made under the scheme on the extent to which the complaint was justified.

If a complaint fails because, for example, it is brought out of time under the rules of the complaint scheme, then the complainant will not be able to bring a civil claim. It is useful to note that the OIA has a deadline of 12 months, so the OfS may have something similar. We think that this outcome is right. Equally, if the OfS or OIA dismisses a complaint without considering its merits because it considers it frivolous or vexatious, as they are entitled to do, the complainant would also not be able to bring a civil claim under new Section A7.

However, I should be clear that, if the complainant is unhappy with a decision of the OfS or OIA which means that they would be unable to bring a claim under new Section A7, then judicial review will be available for them to challenge it. The purpose of Amendment 20 is to make clear what we have always said: the tort will operate as a backstop, since we did not anticipate that many complainants would pursue legal proceedings rather than the free-to-use complaint schemes.

I am therefore happy to make this clear in the Bill on the basis that it will alleviate concerns raised by several noble Lords that the statutory tort will burden universities with dealing with unmeritorious and costly claims, as well as potentially undermine the OfS as a regulator and operator of the new complaints scheme. This point has been made by the noble Lord, Lord Grabiner. On this latter point, I should say that the OfS will undoubtedly welcome case law from the courts, since it will help going forward on its decision-making and formulation of guidance.

I will say more when I sum up. I hope that noble Lords will see these amendments as helpful and as a useful response to the debates we had in Grand Committee. I beg to move.

[Lord Grabiner (CB)]

My Lords, I thank the noble Earl the Minister and the Minister the noble Baroness, Lady Barran, for the explanations that they have provided in the House, in correspondence and at meetings that we have had. That said, I am afraid that I am still firmly against Clause 4 and believe that the Bill would be improved if it were deleted.

I will not repeat the points I made in Committee, but I summarise my concerns by reference to the Minister’s closing remarks on day 3 in Committee on 14 November, in Hansard cols. 725-30, and the government amendment now before us. My starting position, unlike that of some noble Lords, is that I am in favour of the introduction of the new duties to be imposed on universities, colleges and student unions. The Minister has given many examples of absolutely unacceptable behaviours designed to undermine speech freedom. In short, I agree with the Government that, in light of the developing experience, it is now necessary—unhappily—to enshrine freedom of lawful speech in primary legislation.

We have two very experienced regulators in our higher education system: the Office for Students and the Office of the Independent Adjudicator—the OfS and the OIA. In my view, these new duties should be enforced only by the expert regulators. This would be a natural and logical extension of their regulatory powers and they would bring to bear their specialist expertise in this clearly defined area of educational activity. It is also the case that these regulators are subject to judicial review in the courts. Thus, if the decision-making regulator takes into account irrelevant matters, or fails to take account of relevant ones, or is plainly wrong in law, the complaining party can apply for judicial review. If it is necessary to have what the Minister calls a “backstop”, the judicial review mechanism fits the bill precisely. Given the regulatory and higher education context, I do not believe it is necessary, still less is it desirable, to make express provision giving a civil law cause of action in tort which would enable the claimant to pursue a claim in court against the university, the college or the student union, as the case may be.

In the debates that we have had thus far, it seems to me that three issues have emerged which, taken together, strongly suggest that Clause 4 should be deleted from this Bill. First, I and other noble Lords believe that Clause 4 would be an open invitation to ill-motivated trouble-makers—if the social media is taken at face value, there are plenty of them out there. The trouble-makers would inevitably wish to use the very public platform provided by this new access to the courtroom to advance their own ideological stance.

Secondly, we know that universities and student unions are very poorly funded. We should not be subjecting them to the risk of unnecessary and expensive litigation. That is especially the case when we have an established regulatory structure in the sector.

Thirdly—this point has been made in particular by the noble Lord, Lord Macdonald of River Glaven, but also by other noble Lords—the fact that Clause 4 exists will have a chilling effect on the academic sector. Instead of our universities being places where debate and challenge should constantly thrive, decision-making, for example as to who should be invited to speak and on what subjects, will be inhibited. On the first day in Committee, the noble Earl the Minister pointed out, correctly in my view, that

“there is no right to a platform”.—[Official Report, 31/10/22; col. GC 36.]

That is an important point. It is obvious that college authorities and student unions will bear it well in mind. They will inevitably err on the side of caution and rather anticipate and avoid any risk of Clause 4 litigation simply by not inviting speakers who are or may be perceived to be controversial.

This would produce the very opposite of what is intended by the Bill: lawful freedom of speech will have been denied and we will never know the details. I wonder how many universities, colleges or student unions would invite JK Rowling to speak if Clause 4 were in force. My guess is that they would not invite her. That is a shocking fact and is precisely the result we would wish to avoid.

Ministers have separately sought to justify Clause 4, and I will address the points that have been made on the new government amendment before us. It is said that, in practice, there is nothing in my first issue—the ill-motivated claims point. It is accepted that such claims will be made, but it is said that they will be thrown out peremptorily and that the costs incurred by the university or student union would be recovered from the vexatious claimant. This is pure assertion and speculation. It would not be difficult to formulate a plausible argument that the court would be reluctant to halt at the embryonic stage. Also, if you win, it is never easy to recover your costs: the claimant is likely to be elusive and probably penniless, and the process of seeking recovery is time-consuming and expensive. Why would the Government think it appropriate to subject our universities and student unions to any of this legalism?

Next—this is said to be a key point—the Minister repeatedly describes the new tort as a necessary “backstop measure”. The new amendment takes account of some of the criticisms made in Committee on the Bill as originally drafted. If left as it is, there would concurrently be in place the regulatory procedures as well as the new civil law cause of action, without any rules as to priority or the relationship between the two. The new amendment requires that mediation at the college level and all regulatory procedures should be exhausted before a claimant can use Clause 4. I agree that that clarifies matters, but unfortunately it still leaves us with Clause 4.

The argument now relied on by the Government, off the back of the new amendment, is that the individual claimant should be able to claim damages in court for loss, which could not be done in judicial review proceedings—it is correct that an individual cannot recover damages in a judicial review case. This is interesting, but noble Lords should realise that this represents a significant change of tack by the Government, because the Bill as drafted made no reference at all to losses or compensation. The new amendment gives no definition of loss—it might encompass hurt feelings and financial loss, such as wasted travel expenses and matters of that kind—but it is obvious that we are talking about very small amounts of money.

How do you measure, in financial terms, the damage done to someone whose freedom of lawful speech has been undermined? A judge is not entitled to pick a figure out of the air; there must be a rational explanation for the amount of damages awarded. In my view, there is no substance in the argument that the complainant needs a damages remedy; he, she or it will not be able to prove any serious financial loss. In any event, I suspect that, in the mind of the complainant, damages would not be a top priority; it is more likely that the remedy of a declaration, perhaps coupled with an injunction, would be the aim.

Professor Kathleen Stock has been referred to in relation to other amendments, but I should mention her in this context, in case it is suggested that she is a good example of why Clause 4 is necessary. I have every sympathy for Professor Stock, and I am certain that everyone here also does. From what is publicly known of the case, it looks as though she was treated very badly indeed by her employer, the University of Sussex, and, it seems, by some academic colleagues who should have known better. That said, she could have sued her employers for breach of her employment contract, but, for whatever reason, she chose not to. In the circumstances, Clause 4 would not have improved Professor Stock’s position.

My concern is that Clause 4 will be used by mischief-makers, whereas our real focus in this House should be the effectiveness of the regulatory function in ensuring that these new and important duties are understood, respected and properly enforced. In my view, the supposed financial protection of the individual claimant is a distraction and a sideshow. I believe the Bill would be greatly improved if Clause 4 were deleted.

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[Earl Howe (Con)]

My Lords, I begin by expressing my thanks to noble and noble and learned Lords from all Benches of the House for their thoughtful and helpful contributions to this debate, all of which I listened to with great attention. I think it would be helpful to the House if I begin my response by considering the tort in the round, before turning to the amendments tabled to this clause, bearing in mind the nature of the debate in Grand Committee and the subsequent, helpful discussions that my noble friend Lady Barran and I had with a number of noble and noble and learned Lords outside the Chamber.

The tort has undoubtedly been one of the most controversial measures in the Bill. A number of noble Lords have spoken today to express their opposition to its inclusion in the Bill. However, other noble Lords strongly support the inclusion of the clause. My noble friends Lord Moylan, Lord Frost, Lord Strathcarron, Lord Jackson of Peterborough and Lord Farmer, and the noble Lord, Lord Moore of Etchingham, have written to me setting out compelling arguments for retaining the tort, some of which we have heard today. Many of the arguments have been echoed by the Free Speech Union in a letter to the Secretary of State for Education signed by 49 leading academics, among them, incidentally, Professor Kathleen Stock. Perhaps I might say in that context that I reject the view expressed by my noble friend Lord Moylan that the government amendments, to which I spoke earlier, somehow water down or weaken the tort provision. They address the concerns expressed about the perceived risk of the OfS’s role as a regulator being undermined and of unmeritorious claims burdening universities with unnecessary costs. I am sorry that no noble Lord acknowledged that the government amendments would deal with those perceived risks, in my view, pretty comprehensively.

We are dealing here with a mixture of arguments. Part of the argument advanced for removing the tort is that it is unnecessary and that there are somehow other measures available to achieve the same thing. I think the best place for me to start would be to address that issue. The noble and learned Lord, Lord Hope of Craighead, suggested in Grand Committee that there would be a common-law tort available, even if the statutory tort was not in the Bill, and that view has been supported by other noble Lords. The Government have looked carefully at that proposition, but we are not convinced that that position is sufficiently legally certain, and for that reason it is not something on which we would wish to rely. I believe that opinion is divided even among noble and learned Lords on the issue.

The purpose of including the tort in the Bill at introduction was to make it 100% clear that a tort will be available, rather than leaving it to the courts to infer whether or not Parliament intended there to be a tort, which in certain cases, they may do. To leave the situation uncertain when we have the opportunity to be absolutely clear would be remiss of us.

The noble Lord, Lord Grabiner, made the point that the tort is not necessary because judicial review is available, whether of a decision by the higher education provider or a decision under the complaints scheme of the Office for Students or the Office of the Independent Adjudicator for Higher Education. However, judicial review is not available against decisions of a student union, and damages are generally not awarded in judicial review claims. I am afraid I do not accept his argument that damages would never be quantifiable in such cases. Of course, let us bear in mind—

[Lord Grabiner (CB)]

I am grateful to the Minister for giving way. With respect, I did not say that they would not be quantifiable. My point was that there would be difficulty in quantifying the figure but in any event, in my view, for what is worth, the figure that you would arrive at would be peanuts, or not much more. That is why I could not really understand the significance of the argument that the reason for the tort was to protect the financial position of a complaining party.

[Earl Howe (Con)]

I am grateful to the noble Lord. It is not the only reason for the tort, as I shall go on to explain. I was going to say that we need to bear in mind that under a judicial review the court would consider standard judicial review grounds, such as a failure to take relevant considerations into account, rather than the substantive issue of whether reasonably practicable steps were taken.

Equally, it has been argued that the tort is not necessary because a claimant could bring a claim for a breach of Article 10 of the European Convention on Human Rights. However, again, this would not be available in relation to student unions because they are not public authorities, and the test for whether damages may be awarded is not an easy one to satisfy. Again, the court would consider whether there had been a breach of Article 10, rather than of the duties under the Bill.

In Grand Committee the noble and learned Lord, Lord Etherton, suggested that we should specify in the Bill what remedies are available in a tort claim. I come back to the point made by the noble Lord, Lord Grabiner, a moment ago, which was a helpful intervention because it highlighted the potential role that court proceedings could have in particular cases. The Government’s intention is that damages should be available to compensate the claimant for the loss they have suffered. We can argue about whether the damages are nugatory or more substantial.

There may be situations in which an injunction is appropriate, for example if a student is expelled from their course and so the court orders the provider to offer them a place on the course for the following year. Other remedies may be suitable in some cases, in addition to these—perhaps a declaration. Our view is that where a claimant does not believe that they have been fairly dealt with by the OfS or the OIA, we should leave it to the courts to determine what is appropriate in an individual case.

Various noble Lords have raised concerns that the tort will create a chilling effect, dissuading higher education providers, colleges and student unions from inviting controversial speakers to campus because of fear of litigation. My noble friend Lord Willetts raised this concern; I understand him to believe that the availability of the tort may cause students or academic staff to self-censor over fears of being labelled a controversial speaker or lecturer.

To say that the Government are not convinced by these arguments is an understatement. The stronger counterargument appears to us to be that the Bill as a totality, including the tort and codes of practice, will create a stronger regime that will encourage providers to make sure they are getting their decisions right and will encourage a change of culture across our campuses. That regime and change of culture will deter providers from the notion of simply not inviting controversial speakers and will give greater protection to academic staff to speak out.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, expressed a concern that has been raised with me in other contexts outside the Chamber—that the OfS complaints scheme will simply take too long to reach a decision. I am glad he raised that point, and I hope I can reassure noble Lords on that score. The OfS will consult on the scheme rules and will publish clear expectations on timetables. It will be held to account on its efficiency and the effectiveness of the scheme by its board and by the Government.

As a possible exemplar, the OIA says of its complaints scheme that it commits to normally sending a complaint outcome within 90 days of receiving all the necessary information. It also says that where a party needs a case to be reviewed particularly quickly, it can request that it be prioritised. Some cases may take six months to review overall, by the time all the information has been gathered, but others may take much less time, depending on the complexity. It is worth noting in this context that the limitation period for bringing a civil claim is six years, so there is little risk of missing that deadline if this approach is taken. I hope that explanation gives some comfort to those who are concerned that a complaint may go into some sort of black hole and not come out again for years and years.

I want to cover another issue that was raised in the context of government Amendment 20, so that it is understood. We do not consider that this amendment would prevent a person seeking an interim or emergency injunction in the courts. Such an injunction would be sought in a case where the claimant wants to prevent a future breach of the specified freedom of speech duties, rather than where a breach has actually occurred—in other words, where there is the threat of a breach. In that case, an individual would not be able to complain to the OfS or the OIA under either scheme, as there has been no breach yet. Accordingly, the requirement to have first exhausted a complaint scheme would not apply and the claimant could in principle go straight to the courts.

Higher Education (Freedom of Speech) Bill

Lord Grabiner Excerpts

Committee stage
Wednesday 2nd November 2022 Grand Committee

[Baroness Falkner of Margravine (CB)]

I think the noble Lord does not quite appreciate how qualified Article 10 rights are under the European convention. It clarifies:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”.


It goes on to say that those rights can also be circumscribed

“for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others”.

The point here is that they are qualified. The judgment of qualifying those rights, and making decisions about when the qualifications will apply, should rightly lie with the provider and not necessarily be set out in legislation.

The noble Lord referred to the duty of care to students. Of course there is a duty of care to students, but providers have been delivering those duties of care to students, academics and staff throughout this period. There is no evidence to say that they are not capable of doing that, so we can move forward with the Bill.

As I said on Monday, my personal view is that, although the Bill is significant and important in setting out more clearly the importance of differing opinions and viewpoints, the danger we run here is of it leading to so many changes that it actually succeeds in suppressing speech. No one has a right not to be offended. We are in danger of conflating that right not to be offended with safeguarding rights or hurt or distress, which is where we might go were we to pursue this amendment.

[Lord Grabiner (CB)]

My Lords, I will be brief. In his remarks, the noble Lord, Lord Mann, gave some extremely significant examples. Some very bad stories are no doubt out there but, with great respect, might it not be more appropriate for such matters to be dealt with in the code of practice rather than in primary legislation? It seems much more sensible to deal with this by way of advice to, for example, university institutions.

[Lord Moylan (Con)]

My Lords, I take great pleasure in speaking immediately after the noble Lord, Lord Mann, and other noble Lords who have spoken on this topic. I am delighted that my Amendment 35 has been grouped with this interesting debate but I will be taking the discussion in a slightly different direction, which explains my hesitation at leaping in at this point. None the less, I am on my feet and will speak to Amendment 35 in my name, which is in this group.

At least some of us who were in Committee on Monday began to wonder how much this Bill would achieve by way of change, both culturally and in practice. I say that by way of introduction to my remarks on the amendment because I am coming to the question of how the Equality Act is interpreted in connection with the duty, which already exists under the 1986 Act, on universities to protect freedom of speech and freedom of expression. I remind the Committee that, under the Equality Act, all public bodies have a broad duty to

“eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act … advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it … foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

The 1986 Act, as I say, has the obligation to protect and advance free speech but, in recent years, we have found that the Equality Act obligation is frequently being interpreted by universities as a reason to take steps to impose their views on equality, diversity and inclusion both on students and in public events. We have seen, for example, gender-critical feminists being turned away precisely because universities have interpreted their presence as contrary to their own public sector duty under the Equality Act.

Amendment 35 does not excuse universities from their public sector/public body duty under the Equality Act—they remain required to fulfil that broad duty. But it does insert a university-specific balancing requirement that requires universities also to have regard to free speech in interpreting this duty. This is a balancing amendment that ensures that potentially contradictory public law duties do not clash with one another. It is for that reason that I advance it but, to be honest, if we do not see something like this happening at various points in the Bill, it is hard to see how current practice and culture will change at all. With that in mind, I recommend Amendment 35; I hope that the Minister will be able to give wholehearted agreement.

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[Baroness Thornton (Lab)]

My Lords, I am not going to say very much because this debate has covered most of the ground that we need to cover on how this issue should be decided. However, I always listen to the noble and learned Lord, Lord Hope, very carefully. When he says that simplicity is best, that is probably right. We definitely find Amendments 33 and 54 to 56 the more attractive amendments. As my noble friend Lady Chakrabarti said, they are the common-sense amendments. I am more attracted to them than to Amendment 31 in the name of the noble Lord, Lord Moylan.

This debate has shown, and I agree with those who have said so, that while the words in the noble Lord’s amendment are of course very laudable, actually it is the words that go in the Bill and create the law that are important. That is our job here in this House. It is certainly not our job to put words into legislation that might create more confusion and proclaim values at this stage. The Minister will probably tell us how the Government feel about that. My noble friend Lord Smith outlined in the earlier debate what a hard job the leaders of our universities have in balancing their duties and rights. That was amplified by the noble Lord, Lord Willetts, when he spoke to his amendment.

In reflecting on the remarks of the noble Lord, Lord Moylan, I do not think that this amendment would have stopped what happened to Kathleen Stock. That was a failure of the leadership of her university to fulfil their duty of care to her and their need to promote free speech in their institution. This amendment would not have stopped that, because it is to do with how that university conducts itself.

[Lord Grabiner (CB)]

My Lords, I will be very brief. On the point made a moment ago by the noble Baroness, one of the oddities about the Kathleen Stock case—the noble Baroness, Lady Falkner, knows a lot more about this than I do—is that she undoubtedly would have had a claim for breach of contract. It appears that some agreement was arrived at and the matter was settled, but she would have had a very clear and good claim against the employer for breach of contract, without the need for anything in this Bill, which does not advance matters. However, we will come to that at a later moment.

I respectfully support the amendments from the noble Lord, Lord Willetts, but I am not going to get involved in the Moylan debate. I firmly support Amendments 54 to 56 because what is critical, as has become apparent in the course of these debates, is the importance under the Bill of the guidance and code of practice. It is vital that the code of practice that eventually results is an absolutely bullet-proof and really impressive document. The proposals from the noble Lord, Lord Willetts, would achieve that and strengthen the current drafting.

[Earl Howe (Con)]

My Lords, this group of amendments relates to duties and powers to promote freedom of speech under the Bill. Amendment 31, tabled by my noble friend Lord Moylan, seeks to clarify the steps that a higher education provider or college would need to take in order to promote the importance of freedom of speech and academic freedom. This amendment would replace the duty to promote the importance of freedom of speech and academic freedom with a duty to have particular regard to certain matters, including the need to eliminate unlawful interference with freedom of speech and academic freedom and to promote and prioritise the particular importance of freedom of speech.

By replacing the duty as drafted, I suggest to my noble friend that this amendment would in fact weaken the duties under the Bill by replacing a duty to do something—the words, “must promote”—with a duty to “have particular regard”. Providers will already be required, under new Section A1, to take reasonably practicable steps to secure freedom of speech. In doing so, they will need to have particular regard to the importance of freedom of speech. As part of this, we would expect providers to consider many of the matters suggested by this amendment and do not consider it necessary to set these out in detail. Indeed, prescribing the matters to which providers must have regard in this way could have unintended consequences, and result in providers taking a less comprehensive and balanced approach to their duties overall.

My noble friend asked me why specifically I could object to his amendment. There is a good reason, as I have indicated, which is that the amendment would have the effect of removing the duty to promote the importance of freedom of speech and academic freedom. That is a new and important duty, created by the Bill, that will drive forward a culture where freedom of speech is fostered and celebrated and students, staff and visiting speakers feel confident to express their views freely.

Amendment 33 in the name of my noble friend Lord Willetts and the noble Lord, Lord Stevens, seeks to amend the duty to promote the importance of freedom of speech and academic freedom by adding a duty to have due regard to all the other relevant legal duties. We have already discussed the issue of the interaction of the Bill with other duties. The main duty in the Bill is to take reasonably practicable steps to secure freedom of speech within the law. That means that providers, colleges and student unions can take account of all their legal duties on a case-by-case basis. So the duty does not override existing duties under the Equality Act 2010 regarding harassment and unlawful discrimination nor, for providers, the public sector equality duty or the Prevent duty. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that.

I agree that the University of Essex report showed that there were misunderstandings of how the Equality Act should be properly applied, but we hope and trust that the measures in the Bill will, as I said earlier in response to a point made by the noble Lord, Lord Collins, serve to minimise those misunderstandings.

As I have previously said, the duty is derived from the current legislation in the Education (No. 2) Act 1986, so it is not new. Providers have been balancing their legal duties for many years: in relation to unlawful discrimination and harassment under the Public Order Act 1986 for 35 years, in relation to the public sector equality duty since 2011, and in relation to the Prevent duty since 2015. However, the new duty to promote the importance of freedom of speech and academic freedom might mean that a provider speaks out publicly to defend the freedom of speech of a staff member in the face of calls for them to be removed for something they had said, or it might involve giving talks to staff and students on the importance of freedom of speech in democracies.

We come back to an objective that I have mentioned before, which is the need in some institutions for a change of culture. Noble Lords will appreciate that the duty to promote is a high-level duty designed to give rise over time to a change in culture on university campuses. It is not a duty to promote freedom of speech. Rather, it is a duty to promote the importance of freedom of speech. As such, I do not believe that it needs the additional “due regard” duty as proposed.

Amendments 54, 55 and 56 in the name of my noble friend Lord Willetts seek to require the Office for Students to consult on and publish guidance relating to the promotion of freedom of speech and academic freedom, and to require it to give advice on that in a timely manner. Clause 5 inserts new Section 69A into the Higher Education and Research Act 2017. This provides that the OfS may identify good practice and give advice to providers and colleges on the promotion of freedom of speech and academic freedom. This wording is entirely based on Section 35 of the 2017 Act, which provides that:

“The OfS may … identify good practice relating to the promotion of equality of opportunity, and … give advice about such practice to registered higher education providers.”


Accordingly, the provision does not concern the new duty on providers and colleges to promote the importance of freedom and speech and academic freedom in new Section A3 that I have just described. Rather, it concerns the duties of the OfS and the advice that it can give to providers and colleges generally about how they can promote freedom of speech on campus.

I hope my noble friend Lord Willetts will be reassured to know that Section 75 of the 2017 Act, as amended by this Bill, will require the regulatory framework of the OfS to include guidance for providers on the general ongoing registration conditions, which will now include specific registration conditions on free speech in accordance with Clause 6, as well as guidance for student unions on their freedom of speech duties. Therefore, it will be here that the OfS will set out guidance on the new duty under Section A3 to promote the importance of freedom of speech and academic freedom, which must be complied with under the registration conditions.

Higher Education (Freedom of Speech) Bill

Lord Grabiner Excerpts

Committee stage
Monday 31st October 2022 Grand Committee

[Baroness Chakrabarti (Lab)]

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.

[Lord Grabiner (CB)]

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.

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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—

[Lord Grabiner (CB)]

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.

[Earl Howe (Con)]

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.

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[Lord Macdonald of River Glaven (CB)]

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.

[Lord Grabiner (CB)]

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.

[Lord Stevens of Birmingham (CB)]

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.

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[Lord Grabiner (CB)]

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.

[Baroness Smith of Newnham (LD)]

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?

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[Earl Howe (Con)]

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.

[Lord Grabiner (CB)]

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.

[Earl Howe (Con)]

I am very grateful to the noble Lord; I will certainly take that point away and make sure that it is noted.

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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.

[Lord Grabiner (CB)]

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.

[Lord Sandhurst (Con)]

What we are concerned with in particular is people losing their employment, but I am happy to go further.