1: Clause 1, page 1, line 10, after “speech” insert “within the law”
Member’s explanatory statement
This amendment seeks to ensure that the definition of freedom of speech in section A1 is identical to that within A3.
My Lords, I rise to speak to Amendment 1 and other amendments in the name of my noble friend Lord Wallace of Saltaire, with his permission, as he cannot be with us in Committee today.
Quite often in Committee, the first amendment can seem a little trite. Sometimes it inserts “and” or deletes a semi-colon, because the way we have to table amendments is sometimes a little esoteric. On this occasion, the first amendment fits with the wide range of amendments that form this group—namely, in Amendment 1, my noble friend suggests that after “speech” we should insert “within the law”. This goes with a whole set of amendments that, in many ways, are trying to ensure that the variety of issues within this legislation, if it is necessary and has to pass—like my noble friend, I query its necessity—are dealt with. The first amendment seeks to make sure that we are clear about what we are looking at in the concept of freedom of speech. Reaffirming that within the law is clearly important.
My noble friend also tabled a range of amendments to insert or withdraw “beliefs”. He says that they are self-evident but, in particular, he wants the Committee to think about what His Majesty’s Government mean by “beliefs” in the context of this legislation, because the problem that this legislation purports to resolve is about freedom of speech in higher education, but that concept is not always well-defined.
At this point, I take a moment to declare my interests. As outlined in the register, I am an academic employed by the University of Cambridge, a fellow of Robinson College Cambridge and a non-executive director of the Oxford International Education Group, plus I sit on the odd advisory body of other places of higher education. Therefore, I have a professional interest in the Bill, but I also have an interest in ensuring that any legislation that we pass is absolutely clear. One of the biggest problems for many of us, whether in higher education or other parts of public service, is not necessarily whether the legislation exists but how clear it is and how effectively the people subject to it are going to be able to monitor it—is it clear to everybody? One of the best examples of this was the Licensing Act 2003. When it was introduced, it was full of uncertainty, vagueness and lack of clarity. It took many amendments and much work by local authorities to understand what the Government wanted.
My Lords, I shall speak to Amendment 2, which is in my name and that of the noble Lord, Lord Triesman. The amendment seeks to do two things. First, it seeks to explore what the Government mean when they refer to
“freedom of speech within the law”
in new Section A1(2). Secondly, it seeks to avoid a possible inconsistency between the freedom of speech that the Bill seeks to protect and promote and the right to free expression that is protected by Article 10 of the European Convention on Human Rights.
There is a bit of history behind this amendment. I drafted it just after the Bill received its Second Reading in the summer. At that time, the Prime Minister was Boris Johnson, the Secretary of State for Justice was Dominic Raab and the Bill of Rights had just been introduced, which I think it is right to say he particularly favoured. The point that concerned me at that time was two Bills dealing with freedom of expression or the right to freedom of speech proceeding together without any connection between the two. What happened, as we all know, is that there was a change of Prime Minister. When Liz Truss became Prime Minister, Dominic Raab was no longer the Secretary of State for Justice and it was made known that the Bill of Rights was no longer to be proceeded with. However, there has been another change: we have a new Prime Minister, Dominic Raab has come back in again as Secretary of State for Justice and it is possible that the Bill of Rights may be resurrected and create the problem that I was anticipating in the summer. I stress that one of my motivations behind this amendment was to be sure that both bits of legislation, if they are to proceed, are in communication with each other and that, when we use the expressions “freedom of expression” or “freedom of speech”, we are talking about the same thing.
I come back to the point that I mentioned at the beginning: the phrase “within the law” needs some explanation. It seems to assume that the law already tells us what the freedom amounts to. I think that most people—certainly most lawyers—would tend to look to Article 10 of the European Convention on Human Rights as telling us what the freedom amounts to, because it spells it all out and it is suitably qualified for various reasons when you read the second part of Article 10. I should have thought that to build it into this Bill makes good sense. The amendment seeks to explain and give body to the expression “within the law”.
My Lords, I start with my declaration of interests: I still hold academic posts at Cambridge, and I was the general secretary of what was the Association of University Teachers, now UCU—it is a rather different beast these days, but none the less, it was part of my history. It is a privilege to follow the noble and learned Lord, Lord Hope of Craighead. I think the distinction he makes, and the way we could embody consistency between potential pieces of legislation, is very important.
Although Amendment 22 is in a different group, I will make a point now which might mean that it does not have to be repeated later. It is very important to the academic world to know exactly what we as legislators mean by the different terms used. These terms are used very widely in academic life; they always have been and so they should. They were widely defended in academic life as being fundamental to its culture. I would like to believe that they are fundamental to the culture of many other parts of life as well, but they were fundamental to that culture. One of the reasons it is so important to express these concepts in this Bill, and one of the reasons I can understand why the Government have produced it now, is that, sadly, the challenges to freedom of speech and academic freedom have become much more acute and have not been dealt with particularly effectively.
I hark back to the earlier period precisely because the sector itself would have then dealt with these things very firmly and effectively. It was the DNA of the sector. Nobody would have questioned the right of people within the law to espouse views that were unpopular, take sometimes dogmatic positions and engage in every kind of argument under the sun, and, if others wished to try to rebut those arguments, to hear those other arguments in the same spirit. That was—I hope the Committee will forgive me for repeating the point, but it seems so fundamental—the DNA of this sector. I would like to feel that, when the final draft of this Bill appears, it will contain expressions about that which will be instantly recognisable to the people who used to celebrate those values. They will then see this as theirs, not just ours—not just what legislators think is right but what the sector was committed to and always believed was right. The noble and learned Lord, Lord Hope, has done us a great favour in saying that.
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I am not 100% certain—and I shall not pretend to be, as I am not a lawyer but a mathematician by trade—whether those things are strictly against the law, or whether somebody getting up in a university and repeating those conspiracy theories would be breaking the law. I would dearly like to know, and it may well be that there are definitions that would be satisfying to me and to the Grand Committee. But what seems to me worth expressing and exploring is the thought that some things do such egregious harm to the victims of terrible crimes that we should not be negligent about preventing that harm being done to those near and dear to them and others scarred by that experience.
A simple way of dealing with it, I suppose, would be to say, “Here’s a law that prevents that kind of behaviour”, and then it would be contrary to the law. I am not confident enough to know whether that is the case. But on the margins of this, I do not want another parent, aunt, uncle, brother or sister to have references to those appalling crimes repeated ceaselessly and without any chance of redress. I make that point in part in agreeing with what my noble friend Lord Collins has said in his amendment. I would like to believe that the scope is wide enough to deal with what I think would be an appalling act, were it to be committed.
I come back to my fundamental point: at the end of this, whatever we say and whatever mechanisms we put in place, the academic community has to own it. It has to say that the culture of free speech is fundamental, and it needs to know that that is what it lives and breathes by. It will listen to legislation, but if it does not embody it in its own culture, we will have failed.
My Lords, I will speak to the two amendments in my name in this group, Amendments 13 and 28. In doing so, I am conscious of speaking after the noble and learned Lord, Lord Hope of Craighead, with whom I agree on the matter of principle—a nice easy place for me—but disagree on the response of substance. It always fills me with trepidation to think that I am not on the same page as he is on some things.
I shall address the two amendments in the reverse order and speak to Amendment 28 first. That amendment should have been coupled with a proposal to delete lines 36 to 38 on page 2, which it appears to replicate in some ways; that will be corrected at Report, if we get that far.
The substance of what we are discussing is essentially clear. The noble and learned Lord, Lord Hope of Craighead, has rightly pointed out that the Bill lacks a clear definition of what is meant by free speech, and on that we agree. He proposes that the definition of free speech be tied to the convention right in relation to free expression. My view is that that does not take us far enough. The convention right is, first, subject to the jurisdiction of the European Court of Human Rights, which has a history of narrowing that definition over time and creating more exceptions—for example, for the protection of reputation, and so forth. Because it is one that can be appealed in the European Court of Human Rights, it is likely to be interpreted in a very legalistic way by universities and to lead to a great deal of litigation. As the noble Lord, Lord Triesman, rightly said, universities need to be persuaded to own this as a project and not regard it simply as a further aspect of the legal thicket through which they have to work.
There is also great advantage in having a definition of freedom of speech which is a British tradition and based on British notions of common law: the notion that you are free to express anything which is not specifically prohibited by law. That is a different approach, if I may say so, from the one being advanced by the noble and learned Lord, Lord Hope of Craighead.
My Lords, it is a great pleasure to follow the noble Lord. In this very short but interesting debate we have already seen the problem that the Government are essentially seeking to address—a failure of leadership in many of our universities—through legislation that, given the amendments we have seen today, I suggest will be very hard to implement.
I remain unconvinced that this is the right way to tackle what is undoubtedly a problem in our universities. I first came across this when meeting Professor Kathleen Stock, who was subjected to horrific abuse in her own university for simply saying that your biological sex cannot be changed by feelings of identity, which I think are quite unexceptional and certainly legal remarks. Many other women academics in universities have felt threatened and censored for the simple act of trying to engage in these kinds of debates, particularly in relation to women’s sex-based rights. Unfortunately, many universities have allowed abusive behaviour to go unchallenged.
It seems to me that, at the heart of it, there is a question as to whether, even at this late stage, we can look to universities to put their house in order. I think that that would be a much more appropriate way forward than seeking to implement what I am convinced will be wildly impractical legislation. Already, our very civilised debate over what we mean by free speech suggests that this will be a huge problem when it comes to implementation.
The recent survey by the Higher Education Policy Institute showed a distinct shift in attitude by students, who it says
“have a very different conception of academic freedom and free speech norms than earlier generations”.
It suggests that these may have
“swung too far in one direction, with relatively few students recognising the unavoidable trade-offs involved with ever-greater restrictions on legal free speech.”
My Lords, I will speak to Amendment 30. I should first apologise for not speaking at Second Reading. Because of other commitments I could not be there at the beginning and the end, or indeed to speak in the middle.
Amendment 30 seeks to add to the proposed matters to be addressed in the education providers’ code of practice. It would add a new paragraph to new Section A2(2), which would impose an obligation within the code of practice to put in place measures to ensure that politically motivated complaints against academics do not lead to time-consuming investigations. Education providers should have procedures enabling them to dismiss vexatious, frivolous, malicious or politically motivated complaints made against a member of their community—in other words, to snuff them out at the start. It might be that sensible universities will do that anyway, but if it is made part of a mandatory condition of the codes of practice then they will all have to do that, and make certain that they do.
It is plain that there are plenty of academics who hold unfashionable views of one kind or another, and they sometimes bring in unfashionable speakers with minority views. It is also plain from newspaper reports that we operate in a climate of fear, in the sense that academics and students are sometimes afraid for their careers. Without going into any unnecessary detail at this stage, the latest incidents were at Cambridge, where Professor Arif Ahmed, who is professor of philosophy, invited Helen Joyce, who has rather clear views on sex issues. We do not have to go there, but there was a tremendous hullabaloo and his own college, Gonville and Caius, made life very difficult for him.
What might have happened is that there might have been a complaint after the event or at the time. If a summary procedure is open to the university, it would see at once that such a complaint should not go any further but should be snuffed out at the beginning. This amendment is designed simply to provide for that and to encourage universities and other education providers to do things quickly and appropriately. That will help to improve the atmosphere.
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It is important that in this legislation we are clear what is meant by “beliefs” and what the Government’s understanding of “beliefs” is. Also, as Amendment 3 in the name of the noble Lord, Lord Collins of Highbury, points out, we need to be clear what we are talking about in the context of freedom of speech in higher education. Although there are no Liberal Democrat signatories, I have no hesitation in putting forward Liberal Democrat support for Amendments 3 and 11, because both amendments are extremely important to bring clarity. I shall not pretend in Committee to channel my noble friend Lord Wallace; I shall simply move the amendment in his name, support those in the name of the noble Lord, Lord Collins of Highbury, and look forward to hearing the debate at this stage. I beg to move.
Those are the two reasons: first, to give greater body to the phrase “within the law”, so that everybody understands what it means and to preserve consistency with Article 10, which is part of our law; but also to avoid a possible inconsistency with the Bill of Rights, should it be reintroduced, because it would be unfortunate if that Bill, when it talks about freedom of speech, as it does, should be using a different basis for legislation. I should explain, and I am quoting now, that Clause 4 of the Bill of Rights says:
“When determining a question which has arisen in connection with the right to freedom of speech, a court must give great weight to the importance of protecting the right.”
It goes on to say:
“In this section ‘the right to freedom of speech’ means the Convention right”.
It then sets that out in full in the way that my amendment does.
My amendment is based on the wording that can be found in Clause 4(2) of the Bill of Rights as it was, and it is the best I can do to bring the two Bills into line. With great respect, I do not think that this amendment does anything to harm this Bill or in any way interfere with the basic principles which the Government are seeking to achieve by promoting this legislation. All I am trying to do is avoid misunderstandings and inconsistencies. With that background, I commend the amendment to the Committee.
I also support wholeheartedly my noble friend Lord Collins’s amendments. I want to make one brief point about the concept of “within the law”. Generally speaking, I would hope that I understand what those words mean, but there are some areas where freedom of expression arises where I am not entirely sure that I do. I want to mention those here, not because I want to restrict people’s freedom of expression but because I do not want us to do undue harm to anybody. I am thinking here of the kind of coverage given in public by some people to the murder of the children at Sandy Hook and the case, which I believe will be reported on “Panorama” this evening—goodness knows how I know, but I have heard this—to do with people making gross allegations about what happened at the Manchester Arena bombing.
Amendment 28 is an attempt to put that approach—the idea that you can say something as long as it is not prohibited by law—into statute. That is the essence of Amendment 28. It contains an exception for Holocaust denial, but otherwise I think it resolves this question of defining freedom of speech in a clear and unambiguous way. I say this without knowing any more than the noble and learned Lord does about the Government’s current intentions in relation to the Human Rights Act, but my definition would future-proof the Bill against any attempt to resile from the European Convention on Human Rights that might come forward in such legislation, if it appears.
I now turn to Amendment 13, which is an attempt to define what is meant by reasonably practicable on the part of universities. Here, as the noble Lord, Lord Triesman, has made clear, drawing on his experience as an academic, there has been a significant change over the years in the attitude of universities towards these tricky and difficult questions. As he says, some years ago, when he was perhaps a younger academic, university authorities themselves were committed to freedom of speech and it was they who would be protecting those who wished to express controversial and difficult appointments from the activist behaviour, riots or mobbish-type behaviour that might seek to close them down. As the noble Lord implied, the situation now is that, very often, the problem arises not simply from the student activists but more from the university authorities. We perhaps need a more directive approach, one that makes clear the burden on university authorities to protect free speech, as we can no longer rely on that innate instinct of theirs to do so.
As I said, Amendment 13 is an attempt to do that. First, it makes it clear that doing nothing is a reasonable activity—so that not intervening in order to close things down is a perfectly reasonable activity—and that there should be a clear obligation of tolerance on universities, allowing them to restrict only speech that harms the functioning of the institution. That is a vague phrase which perhaps could be improved in discussion as we come to Report, but I suggest that that latter category would include anti-social behaviour of abuse and insult, or destructive behaviour or racism. Those things could be taken to harm the functioning of the institution, but they would be narrowly drawn so that, in practice, the university had a legal obligation to defend people’s right to their free speech.
It is, if I may say so, a different approach—a slightly fresh and unusual approach. We are understandably so used to relying on the European convention as the basis of our interpretation of rights in the modern age, but our rights go back to well before the drafting of and our accession to the European Convention on Human Rights. We have a proper and correct, distinctly British approach to rights: the notion that one should be able to say something that is not prohibited by law and free to do so is a much wider notion than that imported in the European convention. I think it is a defensible one, and I think the notion in Amendment 13 of what constitutes reasonably practicable addresses the change in circumstances since the 1986 Act in a way that the noble Lord, Lord Triesman, identified. I believe it makes the fairly vague obligation on universities in that Act much clearer and much more deliverable.
HEPI has come up with a list of things that it thinks universities might take forward, which seem very sensible to me. They include:
“reassessing formal procedures, such as existing codes of practice … ensuring consistent good practice, such as balancing controversial speakers with others … giving students improved information on academic norms, including in freshers’ weeks”.
I still think it might be better if the OfS, HEPI and the universities were allowed to work this through together. I suggest to the Minister that, if I were him, I would delay the date on which the Bill came into force to give universities time to try to change the culture and atmosphere within universities. This would be a much more practical and effective way of going forward.
However, if the Government are determined to press ahead, they clearly need to answer a lot of questions about the practical implementation of what they are proposing and the guidance to be given to universities. This is the reason for my Amendment 25. The question is how far intimidatory tactics against people speaking in universities are to be allowed under this legislation. We have seen intimidatory tactics. They can take a range of forms, including open letters demanding that an academic should be sacked for what they have said, vexatious complaints, petitions to publishers demanding that work be withdrawn, campaigns of defamation and smears, demands to prevent an academic being platformed, attempts to prevent events going ahead by threatening trouble if they do, and disrupting events that do go ahead. The targets of these tactics are typically women who believe that sex matters and have the courage to say so.
One possible response to these kinds of attacks is to frame the attempt to silence as itself a form of free speech, but this confuses the right to protest with a right to silence others. Speech that is merely intended to silence the speech of others, far from contributing to knowledge and learning, narrows the scope of the educational sphere. I argue that to frame attempts to silence as equally valid speech ignores the educational purpose of the university.
The amendment would explicitly exclude attempts to silence the speech of others from the scope of the core “secure” duty in the Bill and would require universities to take positive steps to mitigate the effects of those exercising what has been described as the “heckler’s veto” without disproportionately affecting the right to lawful protest. It would also clarify that the use of what I have described as the heckler’s veto to silence legitimate debate and dampen academic freedom on campus is not in itself protected speech.
This is a probing amendment because I want to hear what the Government have to say about our concept of free speech, how far it goes and what is to be done with intimidatory tactics. However, I am still left with the sense that the Bill as it stands is unworkable and will be an absolute nightmare for universities to implement. If only universities had shown leadership in the last few years this would not have been necessary.