There was a moment when I was listening to the Lords Report stage debate on the Higher Education (Freedom of Speech) Bill when I almost fell off my chair – a problem given that I was at the wheel of a car at the time.
Earlier in the week the opposition benches had introduced a new version of a proposal that had been attempted at Report stage in the Commons – a clause banning Non-Disclosure Agreements to settle complaints about harassment and sexual misconduct.
I’d assumed that the government line would be as it has been previously – arguing that ministers were urging providers to voluntarily sign up a pledge and urging OfS to embed something on NDAs in regulation. Back in June Jess Phillips had put it like this:
She also explained to me that the Office for Students is looking at regulation to, for example, take away the status of a university if it is guilty of a breach. I responded—and I say again—that the idea that a rape victim who has signed a non-disclosure agreement will take down Cambridge University is the stuff of cinematic hopeful glory. I will believe that when I see it, which everybody in this building knows will be never. Why would we want to push universities and victims into that position? Why would we not legislate to stop the use of non-disclosure agreements?
At the time the government stuck to the voluntary pledge/OfS approach, but but when Labour’s Lord Collins got to his feet he revealed that he’d had an “extremely positive” exchange about stopping the “nasty practice” of non-disclosure agreements inhibiting free speech – and was “extremely pleased” that the government had signed the amendment and agreed to support it.
I saw a mouse
The amendment doesn’t quite go as far as banning NDAs for all complaints, but it does go further than the Donelan/Can’t Buy My Silence pledge insofar as it covers all complaints relating to misconduct or alleged misconduct by any person. For the government Baroness Barran’s rationale was actually about the sector’s failure to play ball with that pledge:
I agree with the noble Lord that we cannot allow this practice to continue. It has been encouraging to see that many institutions have signed up to a voluntary pledge rejecting the use of NDAs in such circumstances—a pledge launched by the previous Minister for Higher and Further Education, my right honourable friend Michelle Donelan, together with the campaign group Can’t Buy My Silence. However, it is telling that many institutions have not done so, despite strong encouragement from the Government.
So this amendment follows on from the Government’s work in this area over the last year. Just today, the OIA has advised against the use of NDAs. I am pleased to support this amendment on behalf of the Government, and hope very much that your Lordships will also support it.
It’s a major, significant and somewhat surprising win for student and staff campaigners – with the low rates of take up amongst Oxford and Cambridge colleges in particular likely to be identified as a key cause for the change in the history books.
There on the stair
For the rest of the evening there was a predictable pattern – government amendments passed, and everyone else’s amendments were explained as unnecessary, off-beam or to be dealt with in OfS documents. A proposal from Baroness Morris of Yardley, for example, to tackle the so-called “heckler’s veto” was judged too difficult to have on the face of the bill, with its ideas shuffled off to OfS and its guidance.
But then we got to the showdown over the tort.
Following a ruckus at (grand) committee stage, the government had gone away and revised the proposal to make it operate as a backstop that could only be pursued after exhausting university and OIA/OfS complaints schemes – all on the basis that the government “did not anticipate that many complainants would pursue legal proceedings rather than the free-to-use schemes.”
The problem with that proposal for some was that the threat of the tort was what they wanted to deploy – so for Baroness Fox…
…Clause 4, as was, underpinned the duties designed to protect academic freedom through allowing a person to bring civil proceedings against a university or college in respect of a breach of those duties. That would mean hitting universities where it hurts: their pockets. An institution found guilty of violating academic freedom would have to fork out cash to an individual whose rights were infringed. As one academic—Julius Grower, an associate professor of law at the University of Oxford—points out, “the threat of this alone should be enough to encourage university and college leaders to promote academic freedom.”
But for others, the tort itself would have represented a generator of chilling effects that the Bill was supposed to be addressing. Lord Willetts had evidently clocked the tactic of the Free Speech Union sending legalistic letters to SUs at the first sniff of an issue:
We all know that a student union—and I worry about student unions at least as much as about university administrations—if one of these controversies flares up, will receive a lawyer’s letter in the first 24 hours. The lawyers will not say, “Let’s wait and see how the OfS proceeds, because we are the backstop”; the legal letters will arrive. When I think, therefore, about the real test of whether there should be this provision for tort, the real test that, surely, all of us in this House can share is: will the net effect of this provision be to increase and enhance freedom of speech in our universities, or will the effect of this power of tort be a further chilling, a further reduction in freedom of speech in our universities?
And he developed that further by painting a practical picture:
I think of people who try to organise events painstakingly to promote freedom of speech in their university. They try to find a neutral chair who will chair two highly controversial and disputing views. When one person turns up, they try to arrange for there to be an alternative. They try to find the right place for these meetings and sometimes they are already traduced in the media as if they are somehow part of the problem, when they are actually trying, very decently, to be part of the solution. Will the prospect of a legal challenge to what they are doing give them the confidence to carry on organising those events and promoting freedom of speech in our universities? I fear it will have the opposite effect. I think of a 19 year-old who sets up a student society in his or her university, thinking, “Will I find myself facing a legal letter if I get bogged down in trying to arrange an event?”
A little mouse with clogs on
Much of the criticism was aimed at vice chancellors. Fox had accused them of hanging their own academics out to dry:
The University of Sussex has been named and shamed so often in this House in relation to Professor Kathleen Stock that I have got to the point where I am feeling sorry for it. The university’s vice-chancellor is not some outlier; he is one of many. We just happen to know about Kathleen Stock because she went public. This is not some imaginary culture war. These are university managers who are hanging out to dry their own professors, academics and often students.
But Lord Wallace of Saltaire was more forgiving:
I am old enough to know vice-chancellors who were my students or with whom I worked when they were young academics. One of the vice-chancellors involved said to me, “William, we did not see this coming, and you don’t manage a problem very well the first time it hits you.” They have had to learn from their mistakes, as do all CEOs in new and unexpected circumstances. That does not necessarily mean that heavier state regulation is the answer. This Conservative Government are committed to reducing regulation as far as they can, in principle, but apparently not with universities.
Perhaps most outrageously, Fox had argued that using formal procedures – the likes of which academics and students have to use over any other issue – were just too slow. Exhausting procedures was just too… exhausting:
You are an academic with a career to pursue and you are probably not even in a properly tenured post, but to vindicate your rights you have to undertake a process, extending potentially over many months, which comes to consume your life and, ultimately, to damage your career. It is an unenviable choice, and the tort gave people some other option to allow, potentially, for more rapid relief.
Going clip-clippety-clop on the stair
So in the end there were three choices – accept the “watering down” of the tort proposed by the government, oppose it and keep the ability to send scary letters before action, or just kill it off altogether. And after a “won’t somebody think of the children” line from Willetts, the results was all but inevitable:
The people I most worry about are those young people wrestling with arranging events at their universities. It looks as if freedom of speech is some absolute and complete right—who could possibly challenge any freedom of speech? However, they are wrestling with practical questions. What if you discover that the invitation is for the same week as exam week, and a controversial speaker is coming just as the university is holding exams? What if the fundamentalist speaker, as part of his right to speak, is going to insist on gender segregation of the people attending the event? How do you judge those types of difficult questions?
The Contents (to pass the amendment deleting the tort) were on 213, and the Not Contents were on 172. The Contents had it, the Contents had it.
Well I declare
Third reading and then possible ping-pong await. I’ll not go over again here the myriad practical problems that remain with the legislation – nor rehearse again the way in which the evidence for the need for it presented in both houses has almost exclusively centred on youthful memories of about four universities.
What I will say here is that what remains most shocking to me personally is the extent to which neither house has really had any sort of run at trying to understand the social phenomena that they think they’ve been legislating to tackle.
Tilting at windmills like supine university managers and sinister student activists has tended to be a convenient alternative to working out why large swathes of students engage in collective acts of EDI micro-accountability in ways that challenge the old order of formal procedures and ennobled experts passing judgements instead.
To the extent to which you regard the phenomenon of “cancel culture” as a problem, the Bill almost certainly isn’t a solution. But for many, at least the bit that would have allowed the grifters to wave scary letters in the face of SU officers has gone – and killing off NDAs that had become an indefensible component of that lost world of order, deference, process and debate was probably the least the ennobled lot could do before their forthcoming abolition. There certainly hasn’t been much to demonstrate the revising chamber’s “expertise” over this Bill.