On 28th June 2022 the House of Lords debated the Government’s Higher Education (Freedom of Speech) Bill, at its Second Reading. The Bishop of Coventry spoke in the debate:
The Lord Bishop of Coventry: My Lords, intense competition for students, jostling for promotion among lecturers, vigorous, often intense and sometimes rancorous debate, with dashes of sharp practice and occasional mob violence—not a preview of some future Office for Students report but a snapshot of the early academic career of Augustine of Hippo. One of his first publications was advice to lecturers and, significantly for this debate, he later asserted that “By force we can make no one believe.” I will make some general points about the Bill and then raise three more specific issues.
Timothy Garton Ash speaks of three “vetoes” that silence the ability of people to express themselves: shouting them down, the “heckler’s veto”; declaring what they say to be offensive, the “offensive veto”; and, in extreme cases, threatening to kill people, the “assassin’s veto”.
Sadly, it seems that we have seen each of these techniques in action within higher education, as some of the evidence submitted to the Bill Committee demonstrated.
It may quite reasonably be argued that such incidents are very rare, and that existing legislation already provides sufficient means of tackling such threats to freedom of speech, and to academic freedom, or that such things have always occurred, but I am not so sure that all is well. It is also true, as the survey for the Higher Education Policy Institute found, as we have already heard, that students are increasingly prioritising safety, especially for minorities or vulnerable groups, over free speech. There seems to be a generational difference in what is regarded as legitimate free speech—free speech within the law.
Yet there is also evidence that a significant proportion of students report self-censoring their own views and convictions and are reluctant to voice them in public. Similarly, among some academic staff there was a reluctance to imperil one’s career, possible promotion, publication or application for research funding by expressing views that were perceived to lie outside the overall culture of the institution or department. Those willing to take a different line appear to be senior staff, who either did not seek promotion or a new role or who had already established their reputation.
Freedom of speech and, by extension, the right to challenge, provoke, disturb, upset and sometimes to offend, are matters which are worth protecting in law. But these imperatives derive their true value from how they sustain the fundamental purposes of higher education: seeking truth and developing wisdom. They are not ends in themselves, but the means by which we pursue the truth, which is to our common benefit. Christian faith is rooted in the person who testified to truth in the tribunals of power and who promised the means to discern truth—the spirit of truth so movingly invoked at Lord Judd’s thanksgiving service earlier today. This is a vision of open truth-seeking which the Church has, at its worst, sought to stifle in society, but at its best, has helped to embed in university life.
Truth will set you free. By definition, we are all invited to share in this liberative function, to seek the truth as a basis for our common life. Therefore, although we cannot legislate for civility, my hope is that the letter of this proposed law, which is to protect freedom of speech, might make room for the spirit of the law, which is to seek truth without diminishing or dehumanising others.
Indeed, this Bill alone will not accomplish its objectives or guard against potential harms through purely statutory or regulatory means. Alison Scott-Baumann’s work on free speech provides some deep wisdom on nurturing communities of inquiry through an “etiquette of argument”, as she calls it—a way of communicating over divisive issues without causing harm. We are having a go at developing similar principles of conversation in the Church of England at the moment, with some success. At the core of these principles is a fundamental understanding that the truth that we seek is written into our human dignity; therefore, one cannot be compromised without the other.
I turn to some points of detail. The House of Lords Library highlights continued concerns about the potential confusion between the responsibilities of individual institutions, the Office for Students and its new director of freedom of speech and academic freedom, and the Office of the Independent Adjudicator. While new Schedule 6A provides some helpful clarification, I would be grateful for further assurances from the Minister about the interaction between these various, potentially overlapping bodies.
I share concerns already expressed about the new statutory tort. While the Office for Students will be able to dismiss unmeritorious, vexatious and frivolous claims, there remains a real concern that this provision will lead to increased litigation, including through the small claims court, which universities will inevitably need to defend, incurring expense and time, even if the case is dismissed, as I understand it.
Finally, new Sections 3 and 4 in new Part A1 may be read as posing problems for the provision of premises and facilities that meet the religious and spiritual needs of a range of staff and students—a concern also raised in the written submission of the Free Church Federal Council of England and Wales. I am grateful for the assurances given in yesterday’s briefing that there is no intention to compromise dedicated faith premises. Nevertheless, I would welcome a discussion with the Minister, as requested by the Second Church Estates Commissioner in his letter to Minister for Higher and Further Education, to resolve the matter fully.
Augustine was of course right: “By force we can make no one believe”. But sometimes we need legitimately to use the force of law to restrain actions that adversely affect the rights and dignities of others and to protect the rights we have for free speech and freedom of expression. So, although the Bill needs clarification on a number of matters, it is a measure whose intentions I support. I hope to see how the Bill can be better shaped to serve those intentions.
Extracts from the speeches that followed:
Baroness Stroud (Con): My Lords, I support this higher education Bill. I am sure it will benefit from the input of noble Lords in this Chamber, but its intention is good. This Bill is one of the first of its kind worldwide. It resets the balance in favour of freedom of thought and expression. It comes at a time when our public discourse and intellectual conversation are becoming increasingly intolerant.
Academic freedom is central to the character and nature of who we are as a nation. It is essential for the discovery of and search for truth, the foundation on which we build our society, to which my friend, the right reverend Prelate the Bishop of Coventry, drew our attention earlier. It is essential for the development of a resilient generation of critical thinkers who are not afraid of ideas. It is essential for progress: without the freedom to think and express the free exchange of ideas, the entrepreneurial spirit and the drive for innovation are extinguished. They are essential to the growth and prosperity of our nation and to a truly democratic society.
Lord Moylan (Con): First of all, the Bill is not about student protest. When I was president of the Oxford Union many years ago, I had the privilege of welcoming the former President Richard Nixon to give an afternoon lecture. The demonstration was huge, carefully supervised by the local police and monitored by the US Secret Service. I welcomed that; the size of the demonstration was a measure of the success of the event. Even more than the numbers of students packed inside, the demonstration outside showed that you had really hit the button. I am not trying to stop student protest, nor is the Bill.
Instead, to understand the thrust of this Bill, it is helpful to start with one of the most perceptive, and one of my favourite, quotations from the late Lord Keynes. Since this is a debate of learned quotations, I hope noble Lords will forgive me if I read it to them:
“Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist. Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back.”
Indeed, I say as an aside to the right reverend Prelate the Bishop of Coventry, the whole debate around the Reformation was, in effect, framed by the academic scribbler he referred to, St Augustine of Hippo, some 1,100 years earlier, and the rather overexcited interpretations of those writings was still being worked out by a junior academic at a recently founded university lost in the forests of eastern Germany at the time.
Lord Stevens of Birmingham (CB): My Lords, I declare my interest as an honorary fellow of Balliol, my former interest as head of the largest employer of graduates in this country, and perhaps even my future interest as the parent of an 18 year-old, hopefully heading off to university next year.
Parliament is right to want to protect academic freedom and free speech on campus. We have heard specific cases of concern today, and there is a problem that needs to be nipped in the bud. But we do not need battle slogans from the culture wars. Any legislative proposals need to be carefully calibrated because there are complex and competing considerations.
We have heard today that conflicts over academic freedoms stretch back through history. The noble Lord, Lord Wallace, started the clock at 1968, the noble Lord, Lord Moylan, mentioned the Reformation, and the right reverend Prelate the Bishop of Coventry mentioned St Augustine. I am reminded that our oldest university, Oxford, predates Parliament itself and Magna Carta. In 1377, John Wycliffe, translator of the Bible, found himself no-platformed by Pope Gregory and dismissed from the university. As a student, I remember looking out at the Martyrs’ Memorial, where Cranmer, Latimer and Ridley were “cancelled” by Mary Tudor as they were burned at the stake. In 1683, the books of John Milton, our greatest advocate for freedom of speech, were not subject to a trigger warning but burned in the Bodleian. So history tells us that these debates go back a long way.
Lord Collins of Highbury (Lab): We have also heard, from the right reverend Prelate the Bishop of Coventry, about the interaction between the role of the OfS free speech complaints scheme and the director for freedom of speech and academic freedom, and how they will interact with existing ombudsman and, as the noble Baroness, Lady Deech, said, the Office of the Independent Adjudicator for Higher Education. We also believe, on these Benches, that there should be a requirement for the new director for freedom of speech to consider competing freedoms when investigating free speech complaints.
Earl Howe (Con): I turn now to an issue that has given rise to a number of expressions of concern. I listened carefully to noble Lords such as the right reverend Prelate the Bishop of Coventry, my noble friend Lord Willetts and the noble Baroness, Lady Shafik, who are worried that the creation of a new tort, as proposed in Clause 4, may lead unintentionally to a deluge of court cases initiated by vexatious, publicity-seeking pressure groups. Nobody, least of all the Government, wishes to see universities burdened in this way. It may be helpful if I explain why I do not think the scenario that some noble Lords envisage is at all likely.
To succeed with a civil claim, a claimant would need to be able to show that a provider, college or student union owes them a duty of care; the category of those potentially owed a duty of care under the Bill is narrowly defined. They would then need to point to a genuine and material loss they had suffered as a result of a breach of the freedom of speech duties. Those tests are not a low bar, and any claimant who pursued their case vexatiously would certainly struggle to prove it. In the background, of course, a vexatious claimant would be assuming a considerable financial risk, not only in the form of their own legal costs but by being potentially liable for those of the defendant. That is why we believe the tort will be resorted to very much as a backstop. The availability of the free complaints scheme through the Office for Students, which will provide a much easier and more straightforward route to redress, should make litigation unnecessary and therefore unlikely in the vast majority of circumstances.
Bill read a second time and committed to a Grand Committee.