Lords split over free speech in Higher Education Bill

The Higher Education (Freedom of Speech) Bill in the United Kingdom is seen by many opponents as opening up another front in the culture wars, attempting to portray universities and institutions such as the BBC and British Council as part of a liberal elite that needs taming and to be forced to give equal voice to right-wing, pro-Brexit and controversial views.

The proposed legislation, which has already passed through the House of Commons, had its second reading in the House of Lords on 28 June and immediately ran into a storm of opposition from polite but determined members of the upper house – including many sitting on the Conservative government benches.

Among the many concerns is that the bill is poorly drafted, tries to fix something that is not broken and contradicts other legislation going through parliament, such as an online safety bill designed to protect children and adults from hateful content and communication, by proposing that universities could be fined if they did not allow certain things to be said by visiting speakers on a campus platform.

Conservative and opposition peers also claim the bill would lead to “control-freakery”, that it is overly bureaucratic, and is likely to lead to “vexatious, difficult and complex legal proceedings”.

There is also concern about universities having to declare any external funding over £75,000 (US$90,800) from foreign countries outside NATO and the European Union and a handful of friendly countries, while no action is proposed to monitor the over-reliance on international tuition fees from students from China at a number of universities.

In defence of the legislation

Opening the debate for the government, Deputy Leader of the House of Lords Earl Howe used George Orwell’s words from 1945, “If liberty means anything at all, it means the right to tell people what they do not want to hear”, to justify the need to legislate to protect freedom of speech in higher education.

He said there is growing evidence that universities and students are becoming less tolerant of a wide range of viewpoints and that the bill “will protect lawful freedom of speech and academic freedom on campus” by strengthening existing legislation and addressing gaps in the law.

Higher education providers will have to take “reasonably practicable” steps to secure freedom of speech within the law for staff members, students and visiting speakers and develop a code of practice about which they must inform students at least once a year.

The bill also “creates a new statutory tort for breach of specified freedom of speech duties”, with individuals able to seek legal redress if they have suffered as a result of a breach, warned Earl Howe.

As responsibility for higher education rests with the devolved nations in the United Kingdom, the bill only applies to England.

Mandatory registration

To give it extra bite, the Office for Students (OfS), as England’s higher education regulator, will “impose mandatory registration conditions” relating to freedom of speech and academic freedom and monitor “the compliance of student unions”, said Earl Howe.

The OfS is already in the process of appointing a director for freedom of speech and academic freedom who will oversee the complaints scheme, a move some members of the House of Lords think is a bit premature as the bill has yet to become law.

Two substantial amendments were added to the bill as it journeyed through the House of Commons.

The first insists that universities and student unions should not pass on security costs associated with free speech events to the organisers unless there are exceptional circumstances.

The second says the OfS should monitor overseas funding received by higher education providers and student unions so it can assess “the extent to which the funding presents a risk to freedom of speech and academic freedom”, said Earl Howe.

He insisted: “The bill is not about allowing unlawful speech. The right to freedom of speech is not an absolute right and it does not include the right to harass others or incite them to violence or terrorism.

“The bill is about encouraging varied and thoughtful debate, so that future generations develop the ability to think critically, challenge extreme narratives and put forward new – and sometimes controversial – ideas.”

‘Concerns of substance’

But his fellow Conservative peer, Lord Willetts, who served as Conservative universities minister from 2010 to 2014 and is now the chancellor of the University of Leicester, took Earl Howe to task and expressed “some real concerns of substance about this proposed legislation”.

He warned that the statutory tort provision “could well mean that there will be vexatious, difficult and complex legal proceedings” and asked why, when faced with a policy choice “between going down the regulatory route or the legal protection route, both are to be applied in this legislation”.

Lord Willetts also asked “whether the aim is that all lawful free speech should be permitted in universities”. If it was, he gave an example of how tricky this would be by referring to events the day after the legislation was first proposed: a government minister suggested the bill would enable Holocaust deniers to speak (at higher education providers or student unions) “and was promptly slapped down” by the Prime Minister’s Office.

Lord Willetts also highlighted a lack of consistency with other government legislation going through parliament, such as the Online Harms Bill, which seeks to protect children and adults from “harmful content” and “harmful communication” which can cause “serious distress”.

He suggested it would be “perfectly possible” for a university to be fined for breaching freedom of speech legislation “because it would not permit something to be said [on campus] which an online tech giant would be fined for transmitting”.

Lord Willetts described the fact that both measures were going through parliament at the same time as “a ludicrous position”.

Seeking to fix something that is not broken

Baroness Royall, a Labour peer and principal of Somerville College, Oxford, welcomed the commitment to the protection of free and lawful speech and debate in higher education, but she warned: “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.”

She said a recent review had found that only six out of 10,000 speaker events across the universities had been cancelled, “with four of those due to incorrect paperwork” and claimed: “The bill will impose bureaucratic burdens on our precious universities, which are part of the questioning and accountability mechanisms our society needs and deserves.”

Baroness Royall said she was concerned about “politicisation of this issue” and voiced alarm that the bill provides for an “Orwellian director of freedom of speech, who will have sweeping powers [and] act as judge, jury and executioner in free speech complaints and potentially monitor overseas funding of universities”.

She was also concerned that the chair of the OfS, Lord Wharton, had spoken, via video link, at the Conservative Political Action Conference in Budapest and she called into question his judgment in relation to free speech.

She claimed that Lord Wharton had endorsed the recent victory of the Hungarian Prime Minister Viktor Orbán, “whose government has curbed freedom of expression and countless other human rights”, but when tackled had said he was not speaking in his capacity as chair of the OfS.

Backers of the bill

The bill does have its backers, including Baroness Hoey, the former pro-Brexit Labour MP who now sits as a non-affiliated member of the House of Lords.

She referred to a Policy Exchange report from 2020 which found a significant lack of “viewpoint diversity” at universities and said “some of the statistics were shocking”.

“As someone who campaigned all over the country for the United Kingdom to leave the European Union, the one that stood out for me was that just over 50% of academics would feel comfortable sitting next to someone at lunch who was known … to have voted to leave – not even to have campaigned – so I will not be getting many invitations to academic lunches.

“That is just for having used your vote democratically in a parliamentary approved official referendum.”

She also cited what she called the hounding of Professor Kathleen Stock – whom, she said, was “forced out of Sussex University by constant and repeated abuse and intimidation” because of her views on trans people – as one of the focuses for the bill.

Overseas funding concerns

One issue that looks likely to be addressed as the bill moves on to the committee stages for a line-by-line examination by members of the House of Lords is the amendment on overseas funding passed by the House of Commons.

Lord Johnson, who served two brief periods as Conservative universities minister and is the younger brother of the British prime minister and chairman of the advisory board of ApplyBoard, said while he supported what the amendment was trying to do, it “misses a significant part of the problem” concerning overseas funding of the UK higher education system.

While it mentions endowments, gifts and donations, research contracts, research grants and educational and commercial partnerships involving foreign governments, foreign organisations and “politically exposed people in countries that are not on the approved ATAS [Academic Technology Approval Scheme] list”, he was alarmed by the reporting requirement.

This covers funding coming from outside a NATO or EU country, or Japan, Singapore or South Korea, with the threshold for reporting being both “ridiculously bureaucratic” and “set far too low, at a proposed £75,000”.

Lord Johnson said UCL had an income of £1.6 billion in the last financial year, £500 million in research grants and almost £50 million in philanthropic donations.

“To devote resources to counting every dollop of £75,000 that might come from an overseas source in this way is ridiculous. A more suitable threshold might be £1 million,” he suggested.

Tuition fees from China

He contrasted the “control-freakery of the proposed threshold” with the exclusion altogether of the largest source of overseas funding for most universities – the tuition fees charged to international students.

With one leading Russell Group university having more than 11,000 Chinese students out of a student body of 44,000, he warned that over-reliance on foreign fee income and “associated threats to freedom of speech and research integrity” could arise from this dependence on the income from students “from one big and autocratic country”.

He said: “China is increasingly willing to call out those who criticise it. For universities, this can run the risk of impacting on the recruitment of Chinese students or [the] undertaking [of] research collaborations with China.”

Expect more twists and turns as the bill moves to its committee stage, including Lord Johnson promising to press for “a broader definition of overseas funding” and add a duty on the OfS to consider whether a registered higher education provider is “overly reliant on overseas tuition fee income from students from a single country of origin”.

Nic Mitchell is a UK-based freelance journalist and PR consultant specialising in European and international higher education. Follow @DelaCour_comms on Twitter. He blogs at www.delacourcommunications.com.