Higher Education (Freedom of Speech) Bill

Baroness Royall of Blaisdon Excerpts

2nd reading
Tuesday 28th June 2022 Lords Chamber

[Baroness Royall of Blaisdon (Lab)]

My Lords, it is a pleasure to follow the noble Lord. I look forward to the answer from the Minister about those complexities —my goodness. I begin by reminding the House of my interest in the register as principal of Somerville College, Oxford.

I start with a quotation often attributed to Voltaire: “I may not agree with what you have to say, but I will defend to the death your right to say it”. That, in essence, is the right to free speech. I consider that the free expression and exchange of views are fundamental to the academic, social and extracurricular experiences of being at university. Oxford University’s statement on freedom of speech says exactly that on the website and it is endorsed by the collegiate university as a whole.

I welcome the Government’s commitment to the protection of free and lawful speech and debate in higher education, but I do not believe that the Bill is either necessary or desirable. In seeking to fix something that is not truly broken, it could be seen as yet another spark to inflame the culture wars. As my noble friend said earlier, a recent review of 10,000 speaker events across universities found that only six had been cancelled, with four of those due to incorrect paperwork. I fear that the Bill will impose bureaucratic burdens on our precious universities, which are part of the questioning and accountability mechanisms our society needs and deserves.

Freedom of speech in universities already gets fulsome legal protection. The Human Rights Act requires universities to protect freedom of expression under Article 10 of the ECHR. Section 43 of the Education (No. 2) Act 1986 requires universities to

“take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”.

That is a great statement that seems to suffice.

I am concerned about politicisation of this issue. I suggest that such an important role as chair of the OfS requires the best person for the job, and I suggest that perhaps the person in office at the moment is popular with the Prime Minister. The responsibilities of the chair are immense, especially as the Bill provides for the Orwellian director of freedom of speech, who will have sweeping powers, act as judge, jury and executioner in free speech complaints and potentially monitor overseas funding of universities. The fact that the chair spoke via video link at the Conservative Political Action Conference in Budapest calls into question his judgment in relation to free speech. He said that he did not know that he was appearing on the same platform as a notorious far-right, anti-Semitic, racist journalist—a poor excuse. In his speech, he endorsed the recent victory of the Hungarian Prime Minister Viktor Orbán, whose Government have curbed freedom of expression and countless other human rights. The OfS said that the noble Lord, Lord Wharton, was not speaking in his capacity as chair of the OfS. Frankly, that is not good enough.

Today, I learned that Minister Donelan has written to all vice-chancellors suggesting that the Race Equality Charter is

“potentially … in tension with creating an environment that promotes and protects free speech”.

I am speechless. Can the Minister really defend such a suggestion? I am often asked whether wokeism is rife in our universities and specifically at Oxford. I suggest that it is not.

The Bill appears to require in statute that providers place greater relative importance on always securing free speech. It does not make any mention of the other legal duties that universities, student unions and constituent institutions need to abide by, despite the fact that these duties may potentially conflict with securing free speech in some cases, as the noble Lord suggested. Can the Minister say which duties have primacy?

The new statutory tort is far too open-ended. Safeguards against misuse are needed to ensure that this would be a genuine protection for staff, students and speakers. The Government make much of not involving judges in political questions, but I fear that this Bill could encourage frivolous litigation by provocateurs and draw the courts into very difficult political terrain.

The Bill’s current wording around the scope of the OfS’s free speech complaint scheme appears to allow for complainants to escalate their “free speech complaint” through multiple routes simultaneously. This is likely to lead to immense confusion. A situation of competing judgments could undermine faith in local disciplinary processes and in the procedures of the Office of the Independent Adjudicator and the OfS. At present, the OIA considers student complaints only once the local process has been completed. Does the Minister agree that a similar principle should apply in relation to the proposed framework for free speech-related complaints?

The Bill allows simultaneously for the imposition of sanctions by the OfS for breach of a registration condition and for the issuance of recommendations that higher education institutions, student unions and constituent institutions pay fines. Is it the intention that they could be hit by a number of simultaneous penalties? If so, that could be particularly damaging to student unions.

In relation to overseas reporting, the Bill imposes a general monitoring duty on the OfS that the regulator “must” request information pre-emptively from providers, regardless of whether it has reasonable grounds to suspect a risk to freedom of speech, and seemingly without limitation by the country and potentially exposed persons exemptions, despite the risk-based exemptions set out in subsections. Does the Minister agree that it would be sensible for the OfS to request information only where it has reasonable grounds to suspect a risk to freedom of speech and/or a provider being in breach of a freedom of speech duty owing to overseas funding, and that information in scope for any OfS reporting requests should be restricted to funding from certain countries or individuals?

This Bill will represent the first and only direct way in which the OfS regulates student unions. It spells out how the OfS will take enforcement action against student unions it considers to be, or to have been, in breach of the new free speech duties that will be incumbent upon them. Like colleagues from many other universities, I am concerned that the Bill provides only for a disproportionate punitive approach and fails to offer a gradated scheme of interventions short of a monetary penalty.

Benjamin Franklin said:

“Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech.”


It is my belief that our universities are already proud bastions of freedom of thought and freedom of speech.

Higher Education (Freedom of Speech) Bill

Baroness Royall of Blaisdon Excerpts

Report stage
Wednesday 7th December 2022 Lords Chamber

[Lord Moylan (Con)]

My Lords, I do not think I have said this before in your Lordships’ House, but I stand in almost constant awe of the noble Lord, Lord Wallace of Saltaire, because many years ago when I left university and joined the Foreign and Commonwealth Office, his book, The Foreign Policy Process in Britain, was, if not quite mandatory for those of us joining, then certainly highly recommended. I read it with great attention and I hope I learned much from it, both theoretically and to practical effect. I have been here in your Lordships’ House for over two years and I have never actually had the chance to say that I am slightly in awe of the fact that the very William Wallace who wrote that book is here and makes such a huge contribution to your Lordships’ House and, indeed, to my life.

I have not risen to speak predominantly to the amendment standing in the noble Lord’s name, but rather to the earlier amendment. However, I shall just say that the rosy picture he paints of academics happily getting on together, disagreeing on theoretical matters of physics and generally not hindering each other’s promotion, advancement or job prospects in any way is, I am sure, in many ways an ideal and one we should fight for, but is difficult to recognise in an age when we have seen professors effectively forced out of their jobs because they have views that are not sufficiently pro-trans or whatever. It is hard to imagine, even in a science department, how somebody could question or advance research that challenged some of the bases of climate science. In saying that, I am not suggesting that I have any reason for bringing forward such science, or that there is such scientific evidence, but, theoretically, were it to come forward, how would that affect somebody’s job prospects or their chance of securing academic grants and so forth? It is those realities, and I do regard them as realities, that the amendment in the name of the noble Baroness, Lady Fox of Buckley, seeks to address.

The wording of the noble Baroness’s amendment is, as I am sure noble Lords recognise, taken directly from various findings of case law of the European Court of Human Rights, the Strasbourg court. Case law in the Strasbourg court undoubtedly defends strongly the principle that, in a university, those who are employed by it, especially those in an academic role, have an absolute right to criticise the university, the university authorities, its conduct and its policies. So, the only objection, in my view, that can be raised to the noble Baroness’s amendment is that it is otiose—we do not need it because the right is already there and can be appealed to, so why do we need it in the Bill? The argument for putting it in the Bill, in many ways, is really to demonstrate to university authorities that these rights must be taken seriously.

I have to say that the cases in which these rights have been enunciated and vindicated by the European Court have difficult, and in some cases almost barbarous names. They tend to come from parts of Europe and Turkey. They are cases such as Erdoğan, Sorguç, Aksu, Kula, Kharlamov, which the noble Baroness referred to, and Ayuso Torres. They are not names or cases that trip easily off the tongues of the lawyers engaged by the majority of British universities to advise them on how to conduct the issues of free speech. Whereas the Equality Act, the Prevent duty and the Public Order Act are pieces of legislation with which those lawyers are very familiar indeed, and much more accessible to them. So, in defending free speech, there is a natural bias—the tension, if you like, that was at the heart of the debate on the earlier group—among those giving legal advice to universities and those receiving that advice, to pay attention to the legislation that has a tendency to restrict freedom of speech, rather than the European convention case law that defends and vindicates it.

The argument for the amendment from the noble Baroness is that it is not otiose to include it; these rights exist already but they need to be referred to and universities need to be reminded of their importance. Therefore, the amendment should stand. It is hard to know what I want to hear from the Front Bench in response, but I very much hope that my noble friend can say that the rights expressed by the noble Baroness are crucial and will be defended, and that the Government intend to ensure that the Office for Students does so. However difficult of access they may be, they none the less form a proper basis for the conduct of universities, by contrast to and in tension with the legislation, which restricts free speech.

[Baroness Royall of Blaisdon (Lab)]

My Lords, I remind noble Lords of my interests in the register. I celebrate the fact that the European convention and the Human Rights Act are being cited all over the Chamber today. That is wonderful.

I noted what the noble Baroness, Lady Fox, said about the music faculty at Oxford University. I do not recognise the aspersions that she was casting and will ensure that noble Lords are aware in due course of the situation as it stands. I certainly do not recognise that the university sought to stifle criticism of whatever the music faculty did. I will seek to clarify that with the Minister in due course.

[Lord Patten of Barnes (Con)]

I will add to the comments of the noble Baroness, and declare an interest as the chancellor of a moderately well-known university.

A university does not need legal advice in this case to defend freedom of research or expression; all it has to do is stop its subscription to the QAA—the Quality Assurance Agency for Higher Education—which only recently produced advice on the curriculum which was like a parody of an article in the Daily Mail. Among other things, it included the decolonisation of not just music—I entirely endorse what the noble Baroness has just said—but the maths curriculum. Clearly, the people who wrote it had never heard of Arabs, Indians or the Mayan civilisation, which was doing advanced mathematics before Christopher Columbus arrived. All that any university has to do is what Oxford has done—withdraw its subscription to the QAA, which is now pretty well on its last legs anyway. I regard the QAA’s advice to universities as in many respects the most dangerous assault in the last few years on freedom of expression and research at universities. It is crazy time—it is critical race theory canonised. Universities should denounce it with great enthusiasm.

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[Lord Wallace of Saltaire (LD)]

My Lords, I cannot agree with the noble Baroness that ideological capture takes place in as quite as many places as she has suggested over the course of today’s debate. Of course, “ideological capture” is itself an ideological term. I think I know enough about UKRI to know that ideological disagreement and disagreement about evidence and priorities will continue to plague it, as all such organisations are likely to be plagued. I am sympathetic to this amendment, although I suspect that what it seeks to achieve is best provided by codes of practice and guidance.

I have had some experience in my career of having difficulty with getting research that I have done published. The first and hardest battle I had was with the Board of Trade, which had commissioned from Chatham House a study of the principles of trade policy. The economists who wrote it for us actually talked to a number of trade policy people and therefore produced something that was not entirely in line with the conventional wisdom of the economics profession. The economists at the Board of Trade therefore wanted to prevent us publishing it. We fought hard and they eventually gave in.

A more recent example was when I was asked by a think tank to contribute to a group of essays on the experience of outsourcing in the public services. I wrote something which was quite critical of outsourcing. I should have looked at its website, annual report and list of funders before I accepted the job. When I discovered that the largest outsourcing firms were among its largest funders, I realised why it had some hesitation about publishing what I had written. Again, after a small number of editorial changes, it finally accepted it.

I compliment that think tank for making as transparent as it did who its funders were. One of the briefing papers we have had for the Bill has pointed out the paradox that Policy Exchange, the fons et origo of much of the Bill, demands that student unions and others should be much more transparent about their funding but is itself entirely opaque about its funding. When I read the policy papers which led to the Bill, I was struck by the number of footnotes to American sources—much more than to any other international comparison. I wondered how much funding from various right-wing foundations in the United States had come into Policy Exchange. I do not know—perhaps there was none—but it should be a great deal more transparent about its funding. During the passage of the National Security Bill, I intend to push for more transparency from lobbying charities of that sort, to increase our sense of open debate.

I support the principles of this amendment, but I am not sure that we need to incorporate it in the Bill. I am sure that the Minister, in the spirit in which he has taken the whole Bill, will wish to make sure that the arguments are taken into account and that the principle of open research and publication is accepted and pursued, and not blocked by either civil servants and Ministers in government, or those outside government who commissioned the research.

[Baroness Royall of Blaisdon (Lab)]

My Lords, the Faculty of Music at Oxford University does excellent research. Earlier on, the noble Baroness, Lady Fox, said:

“When the University of Oxford’s Faculty of Music decolonised its curriculum in response to student pressure, the university itself sought to forbid criticism of the new curriculum.”


I have checked with the head of humanities at Oxford University, Professor Dan Grimley. There were indeed some articles in the Daily Telegraph and the Daily Mail suggesting that that might have been the case, but I have it from the professor—from the horse’s mouth, as it were—that the music curriculum at Oxford has not been decolonised and there has been absolutely no attempt to stifle debate.

[Baroness Fox of Buckley (Non-Afl)]

Briefly, on the horse’s mouth, I did not get my information from the Telegraph; I got it from music academics at Oxford University.

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[Baroness Thornton (Lab)]

My Lords, we have three amendments in this group, which have been proposed by my noble friend Lord Collins, with the support of my noble friends Baroness Royall and Lord Blunkett. They pick up some of the questions that were raised in Committee about transparency and proportionality with regards to overseas funding.

Amendment 26 would make provision for collegiate universities, making it clear that it is the governing body of a college, rather than its overarching provider, that should report information to the Office for Students under Clause 9.

Amendment 27 is intended to make the OfS power to gather information more proportionate, and to prevent commercially sensitive information being subject to a freedom of information request through the regulator having requested it. Several colleges and universities have contacted us about this matter, as I am sure is true for other noble Lords, so it is important that this be clarified at this stage.

Amendment 28 would prevent universities having to disclose sensitive commercial information to the OfS, and prevent independent trading entities—for example, the university press—being forced to violate commercial contracts not governed by UK law, because, of course, many of them have contracts with overseas organisations and institutions.

That is a summary of the amendments, and as my noble friend Lord Collins said at Second Reading or in Committee, the key to addressing these issues is transparency and ensuring that that transparency is proportionate. I could quote to the House many of the problems that have been outlined to us by others who are concerned about this, but because Clause 9 explicitly includes commercial partnerships, it is vital that the Government take on board these concerns and explain, on the record, how they will be dealt with, or provide clarification at the next stage of the Bill. I beg to move.

[Baroness Royall of Blaisdon (Lab)]

My Lords, I support these Amendments. Amendment 26 is self-explanatory, and it would be great if the Government could clarify that the governing body of a college, rather than the overarching university, will be responsible for reporting information to the OfS. It would be very good if the Minister could put that on the record today in Hansard.

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[Baroness Barran (Con)]

Given the hour, I am more than happy to set that out in detail in a letter to the noble Baroness. I hope that will allow us to explain to the satisfaction of the House how this provision will operate and that the amendments—

[Baroness Royall of Blaisdon (Lab)]

My Lords, I am terribly sorry to interrupt the Minister’s flow again. I am very grateful to her for suggesting that she should continue the conversation with the noble Lord, Lord Patten, and for saying that she will write to my noble friend. However, if we still have deep concerns about this—I think we are right to be deeply concerned—I suggest that we come back to it at Third Reading, notwithstanding what the letter may explain.

[Baroness Barran (Con)]

I hear the noble Baroness’s request. I hope my letter will be able to reassure your Lordships that these amendments are not necessary.