Has the freedom of speech bill been cancelled?

The Higher Education (Freedom of Speech) Bill is almost certainly no longer a thing.

There’s been hundreds of thousands of words written about the bill – any number of proposed amendments based both on principle and practicalities. Objections, however well couched or well founded, are not – in the end – what kills a bill.

It’s a question, when it comes down to it, of time.

It is vanishingly unlikely that there are enough days left in the parliamentary calendar to pass the bill this session. And the political will – and the departmental capacity – is just not there to get past this constraint.

Upper house, lower house

Poised, as it has been since September, on the brink of report stage in the House of Commons, the Freedom of Speech Bill has all the usual stages of scrutiny in the House of Lords yet to come. Recent years have seen the Lords increasingly keen to improve badly designed legislative proposals – both higher education and freedom of speech represent issues where peers offer a depth of both interest and expertise.

The Commons is less important in terms of timing (it just needs a day, in essence) but the current mood of government backbenchers, the precarious standing of the Prime Minister, and the oncoming local elections all suggest that niche culture wars issues are not anyone’s idea of red-wall friendly election-winning “red meat”.

And then, of course, we have the Queen.

Process story

In Westminster, parliamentary sessions generally last for one year – though there have been exceptions recently due to Brexit and the pandemic. The 2021-22 session started on 11 May 2021, with the State Opening of Parliament and the Queen’s Speech – the 2022-23 session is most likely to start in May this year, just after the local elections (5 May) but ahead of the Queen’s Platinum Jubilee weekend (early June).

Though it is unlikely that we would see the 2021-22 session extended significantly, it is theoretically possible that this could happen – the length of a session is determined by the government and we’ve seen some long sessions (2010-12, 2017-19, 2019-21, though these were announced well in advance) and short sessions (the attempted 2019 mini session that the supreme court wasn’t happy with) in recent years. My idea that the session would end in April and a new session will start in May is based on political considerations, and we’ll get to these later.

Unless a parliamentary recess is underway, the House of Lords and the House of Commons sits Monday to Thursday each week (occasional Fridays are devoted to Private Member’s Bills). Recess dates are decided on by the House in question – for this reason, dates for the Commons and Lords differ slightly.

Not all of the remaining time is available to the government to allocate to the bills it wants to pass in the Commons – consideration also has to be given to backbench business and opposition days (especially at a time when backbench MPs feel neglected and ignored by government) alongside the parliamentary furniture of questions, 10 minute rule debates, and adjournment debates. In the Lords, things are even harder – the house itself decides on an agenda each week, and the government does not get to add the caveats on timings (how long a debate or stage can last) or programming (multiple stages of a bill on the same day, except in an emergency) that it enjoys in the commons.

Dates and deadlines

Here’s how the rest of the session looks for the Higher Education (Freedom of Speech) Bill. I’ve marked on the earliest possible day each stage can take place (we’ll get to how below), and likely dates for prorogation and the Queen’s Speech at the State Opening of Parliament.

We’ve been waiting for a Commons report stage and third reading -since September last year. Though (perhaps foreseeing this issue) a change to Commons standing orders means that both these stages can pass in one day, this will need to be a full day – the bill already has one substantive amendment that will need to be debated, and once it is programmed there will most likely be others that come in.

The agenda for the Commons has been announced for the week commencing 21 February – the bill is not on it. So the first date the remaining Commons stages of the bill could happen is 28 February (assuming the government can find nothing more pressing in Future Business). These stages should be fairly straightforward – there is a government majority and any amendments could easily be voted down, even with the mutinous mood among Conservatives at the moment.

The following week would be the first moment that the bill could be programmed in the Lords – things are seldom scheduled in the Lords until it is clear that the Commons stages are complete. We can therefore assume Monday 7 March (and honestly, that looks unlikely, Lords business fills up fast) as the very earliest possible data for the first reading (which is not a debate and simply marks the entrance of the bill into the Lords). And this is where things get interesting.

The Lords has conventional timings between bill stages – required gaps to allow members to read and reflect on the bill, table amendments, and consult externally. These can be changed in an emergency by the house voting to dispense with Standing Order 46 (if a bill with near-unanimous support, like the response to a pandemic, needs to be made law quickly) but the Higher Education (Freedom of Speech) Bill is – with the best will in the world – not an emergency situation.

Here’s how those timetables work out:

• There needs to be “two weekends” between the first and second reading. The very first date the second reading could happen is therefore 21 March. The second reading is a big deal in the Lords – and for this debate, many peers will want to speak. Despite that, I will assume it can be done in one day.
• There then needs to be 14 days between the second reading and the Committee so the first day it can take place is 4 April – members need to be appointed, and further consultation needs to happen. Because this bill started in the Commons, the Lords Committee will not involve external witnesses – it will most likely happen as a committee of the whole house which is good (easy to programme) in terms of timing but will mean any peer with an interest can speak. Despite that, let us assume a one day committee stage.
• The Lords needs a further 14 days between committee and report stage for complex bills. This is not a complex bill, so this shouldn’t be required – but it is fair to expect a few days gap. However we already know there will be a recess in April, so the first realistic day the report stage could take place is after the recess on 25 April.
• Following this (again assuming against my instinct a single day of debate – remember bills can be amended on report in the Lords!) we would need a three day gap between report and third reading – the earliest date for third reading would be 28 April. The bill could still be amended at that point – the Lords uses third reading on Commons bills for tidying up.

In 2021, prorogation (the formal closure of parliament before the start of a new session) happened on 29 April. There’s no set timing for this period, but 12 days or so before State Opening is about average historically so 2021 was bang on.

There is a world, therefore, where everything goes to plan, where the usually loquacious Lords do not want to speechify on two of their very favourite subjects (free speech, and higher education) and where no emergencies knock the house out of an unprecedented commitment to focus on this bill on the first available day in every week, and that prorogation and State Opening adhere exactly to last years timetable, that would give us a completed bill process the day before the likely date of prorogation.

This ignores two things.

Electoral calculus

The first issue is the pre-election period for the local elections. For three weeks before an election, the government customarily will not announce anything that has long term implications. Though not as severe as the restrictions linked to a general election, the idea of the government charging about making “levelling up” promises just before the local elections doesn’t exactly scream “free and fair elections”, so there would be a temptation to prorogue and send parliament home early.

Politics plays a part here – Boris Johnson will, at that point, have weathered the parliamentary storm on partygate and all of the other questionable things the government has done. The electorate will still be waiting to make its disquiet known – even without this the 2022 locals were unlikely to go the right way for the Conservatives, with it we could be looking at a rout. There’s a temptation to keep MPs away from the Commons as they start taking the local doorstep temperature, and there’s a world in which Boris the campaigner demands MPs get out and campaign as early as possible – early prorogation helps here.

Straight after the election, he’s going to need to change the political narrative, and quickly – a Queen’s Speech, filled with new and popular legislation, would be a good way to do this. Though MPs are mutinous, they want to remove Johnson rather than bring down the government – the risk of a Queen’s Speech failing to pass would be slim. It would be sound political planning to put the State Opening as soon as possible after the election – again pointing to an early prorogation.

Finally, it is possible – but highly unlikely – that the Prime Minister would use prorogation to avoid or forestall a vote of no confidence, should one arise. In doing so he would risk re-opening some of the issues raised in the 2019 prorogation dispute.

Broken bill

More generally, any amendment made in the House of Lords needs to return to the House of Commons for Commons Consideration of Lords Amendments (the first stage of the charmingly named “ping pong”). And there will need to be amendments, not least from the government, given that the bill very clearly is not fit for purpose currently. I would imagine there will also be a fair few opposition amendments – (remember the Lords does not have a government majority, votes can and will be lost). Assuming that the Commons isn’t happy with them, Lords Consideration of Commons Amendments will follow.

Both these can go back and forth in a day – or two days – based on how many times the Lords wants to press its case before it agrees (how many rounds of ping-pong). There will be Usual Channels negotiations which may result in changes and concessions, like – as you may recall – those that happened for the mostly uncontroversial Higher Education and Research Act 2017.

Because our assumption is that this would be happening right at the end of the session we are in something called “wash up” – all kinds of bills will be going through this process, and the government will have to carefully prioritise what it cares about and what will make a difference to people’s lives. No matter how you feel about free speech on campus, it is hard to see how this bill will rank above others that are in train at this point.

You’ll note all the caveats and assumptions here – bill programming is more an art than a science. But even making assumptions that border on the unreasonably optimistic – an organised government, a good bill team, and a compliant and quiet Lords – it is difficult to see a path through.

A ray of light?

There is a way in which a bill can be saved, and “carried over” to the next session. It is more likely that this will be used with bills likely to be popular with MPs, and bills that are closer to a workable form, than the Freedom of Speech Bill.

In this case, the minister would need to announce an intention to “carry over”. This can happen at any stage in the Commons (it has already been agreed for the Product Security and Telecommunications Infrastructure Bill) – in this instance a motion would be voted on at report stage. The bill would then resume at third reading in the next parliamentary session, providing the House agrees. However, we should note that a bill that started in the House of Commons cannot be “carried over” once it gets to the Lords. As so little progress was made with the Freedom of Speech Bill this session (it has never left the Commons), in a normal case you’d see this bill as a likely candidate for “carry over”.

However, this ignores the other things DfE needs to do – in particular the urgent need to sort out the Prime Minister’s flagship “lifelong loan entitlement” in time to start in 2025 as promised. This was supposed to be in the Skills and Post-16 Education Bill – DfE was not ready, and we are still awaiting a detailed technical consultation on these plans. As a newish Secretary of State Nadhim Zahawi is far more likely to want to focus on the eternally urgent schools issues (even there the “free speech” agenda gets only guidance), and on the LLE and related skills issues, than devote time and resources to this bill. It is also notable that the bill’s champion at Number 10 – Munira Mirza – is no longer in post. And we understand that the team responsible for the Bill inside the DfE has been redeployed to other areas.

If you’ve read right to the end you are probably wondering about the various caveats, assumptions, and leaps of political faith that underpin the conclusion that the bill (which, remember, featured in the 2019 Manifesto) is no more. There is no way to be certain – one thing that is true about bill programming as it is about political strategy is that if the will is there there is a way it can be done. In a Bayesian style I’ve estimated the weightings on each coin I’ve flipped and the path of least resistance seems clear.

A DfE spokesperson told me:

The Government remains committed to strengthening freedom of speech in higher education in line with its manifesto and passage of the Higher Education (Freedom of Speech) Bill will continue as soon as parliamentary time allows.

I would say that the passage of the Higher Education (Freedom of Speech) Bill is vanishingly unlikely during the 2021-22 parliamentary session, and very unlikely in the following session. Right now, that’s near enough dead for me.