My Lords, as the Committee will be aware, our debate on Monday on academic freedom and associated issues was paused following the contribution of the noble Baroness, Lady Thornton. I should now like to pick up the various strands of that debate and respond to questions and points raised by noble Lords.
Amendment 12 from my noble friend Lord Sandhurst and the noble Baroness, Lady Fox, seeks to ensure that the academic freedom of visiting speakers is protected under this Bill, and that academic staff suffer no detriment because they have exercised their academic freedom.
First, on visiting speakers who are academic staff elsewhere, I assure the Committee that the Bill as drafted already protects such individuals, but as visiting speakers, rather than as academic staff. The protection of academic staff in new Section A1(7) makes clear that the protection is from losing their jobs or privileges at the provider, or from the likelihood of their securing promotion or different jobs at the provider being reduced. In other words, it is effectively dealing with an employment situation. Such protection would not make sense in the context of an academic speaker who works at another institution. This does not mean that the protection is less for such a visiting speaker, but it is different in nature because of the different relationship of the speaker to the university.
As for prohibiting detriment, the amendment would not allow for any circumstance in which the exercise of academic freedom could result in detriment imposed by the provider. It should be noted here that academic freedom enjoys a special status, reflecting the high level of importance that the courts have consistently placed upon it in the context of the right to freedom of expression under Article 10. However, an outright prohibition of detriment against an academic because they have exercised their academic freedom can be right, as there may be circumstances that mean that action by the provider including dismissal is the right response. If an academic has breached their employment contract or broken the law in some way, they cannot rely on a claim of academic freedom to avoid all consequences.
Amendments 14 and 17 seek to amend the definition of academic freedom in new Section A1 specifically to protect an academic’s freedom to criticise an institute at which they work and other activities included in the UNESCO recommendation of 1997. The UNESCO recommendation refers to
“the right, without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies”.
Let me make it clear that the definition of academic freedom as currently drafted already covers the questioning and testing of received wisdom, and the putting forward of new ideas and controversial or unpopular opinions. This speech is not limited to particular subjects, so it would include speech concerning the institute at which an academic works.
My Lords, I am grateful for the Minister’s observations. I listened to his assurances and the issues he raised with interest. I would like to consider them carefully before Report. For now, I beg leave to withdraw the amendment.
29: Clause 1, page 3, line 13, at end insert—
“(ca) an explanation of how to guarantee freedom of speech while fulfilling the provider’s duty of care for all students, academics and staff,”
My Lords, in moving Amendment 29 I shall speak to the three amendments in my name; they are identical in wording and impact but are in different parts of the Bill. I do so having personally met, on this related issue, the majority of university vice-chancellors across the United Kingdom over the past two years in advance of the Government’s decision, made by the then Education Secretary, to write to universities asking them to adopt the internationally recognised definition of anti-Semitism and build it into their workings. I have been delivering on that successfully across the vast majority of universities across the UK; that work continues.
I want to highlight some examples of why a duty of care is an essential element of strengthening free speech, not as a balance but as an addition. The principle behind it is very straightforward. I referenced the international definition of anti-Semitism because the argument falsely put by a number of people against it was that it aimed to restrict academic freedom and what people said, particularly in relation to Israel. That is factually and practically untrue. There are no examples of where that has happened. It is neither designed nor written to do so. The reason I have needed to meet so many vice-chancellors, and others at the top of universities, is to ensure that they understand what it means and what it does not mean so that they can apply it appropriately, and so strengthen freedom of speech.
If I may, I will give a couple of examples of where the duty of care comes into its own. A famous filmmaker and political activist, Mr Kenneth Loach, was invited to speak at his old college, St Peter’s College, Oxford. A number of the Jewish students in the college were unhappy at Mr Loach’s previous commentary in relation to the Jewish community. That was their perception and, using traditional student language, they suggested that he was not welcome in their college.
There was a complication, as this was during Covid. What normally would have happened is that Mr Loach would have appeared, and there would have been a noisy protest to signify to him that he was not welcome by a number of the students because of what he had said, and he then would have spoken and life would have moved on. Here, because it was online, the university failed to find a way for those students to register the protest that would have happened in real life. This illustrates brilliantly that one person in that situation had free speech and others objected, but what they required, and are entitled to, was the ability to have their speech; that might have been through a protest—very traditional in student environments—or a countermeeting, but they have an equal entitlement to free speech.
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Again, on not balancing but strengthening freedom of speech, I put it to the Minister that a duty of care would require universities to think through the consequences. Nothing could be clearer than the cousin of someone murdered—that is a factual statement—allowing free speech: that is, not restricting speech but ensuring that they have the opportunity also to have a say somewhere, not in contradiction but as well. They are empowered from within that situation by their own university. If it is an 18 year-old student versus an experienced political hack or social commentator, there is an imbalance of power there. I strongly advise government that this strengthens the freedom of speech legislation. It does not balance it and it absolutely does not weaken it.
My Lords, first, I want to refer to the remarks of the Minister to clarify something; I have not had the opportunity to look at Hansard immediately since he spoke on the previous group of amendments. I think I said on Monday that I was speaking in a personal capacity. The Minister has put on the record that I chair the Equality and Human Rights Commission. However, I was not speaking as the chair of the Equality and Human Rights Commission, but in a personal capacity.
The reason this is important is because I have taken advice from the Registrar of Lords’ Interests. As the commission’s powers in terms of protected characteristics are so wide, I would be able to say almost nothing were I to adhere to his advice that I should not speak on anything where the EHRC has a policy. For the rest of this debate, to put that correction on the record, I would like to make it clear that I will speak only as chair of the Equality and Human Rights Commission when I specifically say so in my opening remarks, and I will always tell the Committee that I am speaking in a personal capacity when I so do.
I would like to speak in a personal capacity to warn the Grand Committee to be extremely careful about the amendment from the noble Lord, Lord Mann, which seems on the face of it to be perfectly reasonable. We do not need to be concerned about his perfectly valid and good intentions, but his peroration has made one extremely concerned about what he would expect to happen through that amendment. The noble Lord referred to the fact that the opponents of a speaker have an equal right to protest or drown out what is being said. He says that their right to be empowered is equal.
I am absolutely categorical that the drowning out and breaking up of a meeting would not be acceptable in a democracy, but the right to have a counter-speech or a protest is a fundamental part of democracy.
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.
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I turn to the UNESCO definition. The Bill as drafted also protects the right to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, as I have already said, and freedom from institutional censorship. However, as for freedom to participate in professional or representative academic bodies, academic freedom as defined in the Bill is a specific element of freedom of speech overall. The Bill covers verbal speech and written material but does not cover the act of affiliating with or joining an organisation. I was already aware that this is an issue that the noble Baroness, Lady Falkner of Margravine, was interested in as chair of the Equality and Human Rights Commission, so I am glad to be able to put that on the record.
Amendment 15, tabled by the noble Lord, Lord Wallace of Saltaire, and spoken to by the noble Baroness, Lady Smith, distinguishes between freedom of academic speech within the academic context and freedom of speech for academics and other citizens within the wider public sphere. It is important to state first of all that academic speech is protected under the Bill as part of freedom of speech more generally. The protection is the same for academic staff as compared to other staff and students, but the Bill makes clear that academics should not be at risk of losing their jobs or privileges or of damaging their career prospects because of their speech.
The amendment is similar to a previous provision in the Bill that set out that academic freedom under the Bill meant freedom of academic staff within the law and within their field of expertise. The Government listened carefully to the issues raised during the passage of the Bill in the other place, noting the concern that the definition of academic freedom was too narrow. In fact, the provision was a reflection of Strasbourg case law, and we were clear that it should be interpreted broadly, but we wanted to avoid any perception of such a limitation. We therefore decided that it would be appropriate to remove the “field of expertise” provision, which I think was a widely appreciated outcome. I hope the Committee will appreciate that explanation of how the definition of academic freedom in the Bill has developed.
Amendment 16 seeks to remove from the definition of academic freedom the reference to “controversial or unpopular opinions”. The purpose is to understand whether, where such opinions are not based on evidence, they should be included in the protection of academic freedom. The Bill builds upon the definition of academic freedom that already exists within the Higher Education and Research Act 2017. That definition goes back at least as far as the Education Reform Act 1988, so it is a long-standing one, and it includes the freedom to put forward controversial or unpopular opinions. Academic staff in our universities should feel safe to put forward controversial or unpopular opinions and ideas, whether or not they are based on evidence.
As I said at Second Reading, free speech is the lifeblood of a university, allowing students and staff to explore a spectrum of views, engage in robust debate and pursue their quest for knowledge. Limiting freedom of speech to areas that are not controversial or unpopular would make the definition of academic freedom in this context anodyne and narrow. Equally, limiting freedom of speech to areas that are only supported by evidence would unnecessarily narrow the scope of academic freedom under which academic staff should be free to roam the full spectrum of knowledge and ideas.
Amendment 18 seeks to ensure that an academic is fully protected from adverse consequences to their job, privileges and career prospects. The current drafting of new Section A1(6) refers to the risk of being adversely affected. This covers both the risk of adverse effect and the actual adverse effect, since in the latter case the academic must first have suffered the threat before the occurrence. Accordingly, should a member of academic staff find themselves actually adversely affected as a result of exercising their freedom of speech—having lost their job, for example—they would be covered by the academic freedom provisions of the Bill.
Amendment 19 seeks to add further protection for academic staff from the risk of losing responsibilities or opportunities. I assure noble Lords that the Bill as drafted would already protect an academic from such a risk. First, in addition to the wording relating to privileges, there is already reference to the risk of losing one’s job or the likelihood of securing promotion or a different job being reduced. More importantly, I want to be clear that academic freedom for the purpose of the Bill is considered to be a subset of freedom of speech—a distinct element with particular considerations, within that broader concept—so the main duty to take reasonably practicable steps to secure freedom of speech includes the duty to secure academic freedom. If a person suffers loss as a result, whether because of their academic freedom or freedom of speech more widely, then they can seek recompense through the new complaints scheme or, as we shall discuss later, using the tort.
Amendments 20 and 23 in the name of the noble Lord, Lord Wallace of Saltaire, are, as was explained, intended to probe the practicality and appropriateness of the intrusion of the Bill into university promotion and appointment processes. It is important that the Bill’s definition of academic freedom goes beyond referring to the risk of losing one’s job or privileges and that it should also cover applications for promotion or another job at an institution. This is not currently covered by the existing legislative definition of academic freedom. An academic should not be held back from progressing their career within a university because they have questioned or tested the received wisdom, or put forward new and unpopular or controversial ideas. It is vital that academics can research and teach on subjects and issues that may test the boundaries, otherwise our higher education system would wrongly be limiting itself, which would disadvantage everyone.
Equally, this protection should not be limited to jobs within a university, otherwise academics may find it hard to progress their careers by moving to another institution. That is why we are applying a similar measure of protection to external applicants for academic appointments. The Government believe that freedom of speech in the context of higher education is so important that the provisions set out in the Bill that will apply to the promotion and appointments process are indeed appropriate and necessary.
Amendment 21 seeks to protect academic freedom under the Bill, regardless of the potential consequences for the reputation of the provider. The approach taken in the Bill is to impose a duty on providers to take reasonably practicable steps to secure freedom of speech within the law, including academic speech. A new aspect of this duty is that they must have particular regard to the importance of freedom of speech when considering what steps are reasonably practicable. The requirement to have “particular regard” to the importance of freedom of speech could, in a particular case, prompt a provider to prioritise freedom of speech over another right. However, this would remain subject to its assessment of what is reasonably practicable, and would need to be lawful. This test emphasises the significance of freedom of speech within the law and the need to protect it, where it is reasonably practicable to do so.
I come back to a point I made on an earlier group. Nothing in the Bill prevents a provider looking at the statements or utterances of an academic and considering whether that individual has adhered to their employment contract, whether he or she is upholding accepted academic standards and/or the values and reputation of the department and the university. Again, the reasonably practicable test allows for case-by-case decisions to be made, taking account of all the relevant factors. But it is important to recognise that a provider in this context is an employer, as I said, and that will give them the right to go through the deliberative processes that I have just outlined.
In conclusion, I hope my remarks have provided noble Lords with reassurance that the Bill, as drafted, is sufficient to protect academic staff in exercising their academic freedom
Take that instance as an example. What might a university do now? If that meeting had been timetabled for a Friday night, it would have inhibited the ability of any religiously observant Jewish student to participate in a protest or countermeeting, and so their freedom of speech would have been inhibited by the timing. If the meeting had been located in St Peter’s, that would have been neutral territory, but if it was located, say, next to the Jewish chaplaincy, there would have been an increased aggravation on behalf of those Jewish students, and the protest would perhaps have been wider and stronger. That might suggest that Mr Loach’s freedom of speech, which was not in itself being challenged, would be an impingement if the location of the meeting had been somewhere that was seen to be hostile to a section of the community—in this case, the Jewish students. The publicity for the meeting was “Ken Loach speaks on whatever”, but if it had included swastikas on the head of the Prime Minister of Israel or on the Israeli flag, there would have been an increased incentive for people to shout loudly in protest and demand that he did not speak.
All of that would fall into the category of a sensible duty of care to those students, so that their ability to have their freedom is equal to that of someone who they regard as a controversial speaker—not to restrict the content of what Mr Loach would say, to break up the meeting or to prohibit his right to speak or someone’s ability to invite him. That is an example from before this Bill came forward, but one whereby, if the principles of the Bill are got right, then two sides in an argument can have equal freedom of speech. They may not all be 100% happy but everyone can have their say.
I will give another, more vivid example. I will not give too much detail but it is a real example. Let us say that a convicted terrorist is allowed into the country. I have the ability to go to the Home Secretary—and I have occasionally done so—to say that this person should not be allowed in because they are a threat. If they are allowed into the country, by definition—even if they have served a prison sentence as a convicted terrorist—they are able to speak, including at one of our universities. What happens if a student at that university is the cousin of one of the people murdered by the group of which the individual who is about to speak was a member when the terrorist outrage took place? So we have a student, in this case a Jewish student, whose cousin was murdered, and a member of the group convicted and imprisoned for that offence—with no argument or ambiguity about that—is speaking. Here, the Jewish student demanded that this convicted terrorist not be allowed to speak.
I have argued, previous to this Bill and now, that freedom of speech is absolute; the person is allowed to speak. But there is clearly a duty of care on a university when you have at least one student extremely distraught, for rational reasons, about somebody who was involved in the murder of their cousin speaking in their university. That is not to say that we should ban, stop or restrict, but we must make sure that that student also feels empowered in the situation—perhaps they want to be part of a protest or have a countermeeting. They may need other welfare support in that context. That strengthens freedom of speech; it does not contradict or balance it. This is not a balancing act—it is about everyone having the right to freedom of speech.
I will give a milder example. In the last week I met the vice-chancellor of a university, one of whose very good policies—I will not embarrass or praise them, however you judge it, by naming it—is that all of its academics have been told that it is unacceptable to use the term “Tory scum” in their lectures. It is being directed at government Ministers primarily, whom they clearly oppose on various grounds. One can envisage what might be going on there. The reason this has been done by that vice-chancellor, with due regard to great and wonderful government Ministers, is not the sensitivity of government Ministers but the result of going through the process of thinking through the duty of care. If you were an 18 year-old Conservative-supporting student in that lecture, perhaps in your first term at university, you might be listening to lecturers calling one of your favourite Ministers “Tory scum”.
That is a milder example, but it shows rather good practice. If one wants to put an argument against the Government, turning to abuse to do so is not very effective. It becomes a weaker argument. The student in that position perhaps thinks—I am not making a political point—that there are not masses of Conservative students in solidarity with each other, certainly not in their first year, in certain courses at certain universities. The likelihood is one Conservative-supporting individual among a cohort who they might think are not—who might be delighted at such language and want stronger. But their rights to be empowered are equal. A simple duty of care there does not restrict free speech but improves it.
I will give a final example. A lecturer makes a controversial speech and then, as is very common, there is an immediate external pile-on. The same thing happened to the Jewish students I mentioned in regard to Mr Kenneth Loach. They protested; they were not trying to block him but some of the language used—“We don’t want him in our university”—implied that they were. That was not what they were trying to do, but they got some horrendous anti-Semitic abuse, almost exclusively from people outside the university, because they had dared to challenge Mr Loach.
In this case, a lecturer made a speech which did not appear that controversial when I read it but was deemed so by some. There was a huge email pile-on against the university, attacking that lecturer. The university did not, shall we say, handle it very well. Again, there is a duty of care to the individual. It is one thing to have the right in law to freedom of speech, but the consequences of the speech can be that some people are greatly distressed by the content, or that the speaker is then targeted and needs some support.
Some people—politicians in particular—can thrive in the adversity of debate, but others are more normal human beings. If they are getting abused by thousands of people, or thousands of people are demanding their sacking because they have said something, their reaction will be different. This is not a case in the public domain but one that I am very familiar with; I am happy to give the Minister private detail on it if he wishes. I could go on to give lots of other examples but this is sufficient to make my point.