Posted by Higher Education (Freedom of Speech) Bill dealt severe blow in House of Lords vote
Peers voted on Wednesday night to scrap Clause 4 of the Higher Education (Freedom of Speech) Bill, which would have created a statutory tort to enable academics and students to sue universities and students’ unions for compensation if they’d breached their new duties to protect free speech on campus, as set out in the Bill (Telegraph, Times Higher).
Two weeks ago, in a letter coordinated by the FSU and sent to the Education Secretary Gillian Keegan, more than 50 academics urged the Government not to get rid of the tort in response to intense lobbying from the higher education sector (Telegraph). We think our letter helped to dissuade the Government from scrapping the tort altogether, although its subsequent defence of its own provision could hardly be described as Churchillian. In an attempt to strike a compromise with the Bill’s critics, the government tabled an amendment in the Lords that would require academics and students to only seek compensation in the courts as a last resort, after first pursuing complaints through the procedures of the relevant university and the higher education regulator (the amendment can be found here, close to the top of page 3). We were unhappy about that. Our position is that the new statutory tort is what gives the legislation’s new free speech duties teeth, and if that’s reduced to a weapon of last resort, the Bill is essentially a dead letter.
However, the Government’s compromise was rejected by the Lords, which voted on Wednesday night to get rid of the tort by a margin of 213 votes to 172. According to the Telegraph, Lord Willetts, a former Conservative universities minister – and now Chancellor of the University of Leicester – argued that new powers to enable academics and students to sue for breaching their freedom of speech rights “would be overly burdensome for universities and were unnecessary for protecting free speech”.
On the question of whether Clause 4 is necessary, Lord Moore had this to say during the Lords debate: “There are a great many people here who are very close to the top of universities. It is not very surprising that they all tend to think that universities are running themselves quite well and that it is all basically all right.” His point was that “there needs to be a little more power for the voice of the ordinary student and the ordinary, not-very-important academic who is having a rough time”. Baroness Fox felt much the same way. “Look at the Free Speech Union’s case files,” she said: “There are hundreds of examples of students and academics who’ve been suspended and gone through disciplinary procedures by university authorities for misspeaking, or saying the wrong thing.” Had these people been able to sue universities for breaching their right to free speech, she argued, they probably would have been treated a lot better.
As to Lord Willett’s claim that Clause 4 is overly burdensome, it sounds no more impressive now than it did when the higher education lobby first came up with it. Writing in The Times three weeks ago, for instance, Dr Tim Bradshaw, head of the Russell Group of Universities, bemoaned the fact that “the bill will… create a new right to pursue civil legal claims without adding basic protections to reduce the likelihood of frivolous actions”.
Criticisms of this kind seem oblivious to both the legal architecture proposed by the draft legislation, and, in addition, the considerable power courts have to manage cases and prevent vexatious or misconceived claims from proceeding.
The first port of call under the Bill for anyone who believes their right to free speech has been infringed will be a specialist adjudicator (the new free speech champion at the Office for Students) who will deal solely with university free speech cases. This is intended as an informal, inexpensive, and less risky alternative to the court route, similar in many ways to the Office of the Independent Adjudicator, which deals with students’ complaints.
It’s true that the Bill – as written – would also have provided an alternative remedy in the County Court, but because the Bill will forbid a complainant from running the same case simultaneously through the courts and the OfS it is likely that a judge would pressure any claimant to exhaust the OfS route before proceeding with a claim – and the claimant would risk significant adverse costs if he or she then proceeded with the case.
What critics like Lord Willetts also seem not to understand is that the courts assign cases to various ‘tracks’ depending on the value of the claim. This aims to ensure the burden of litigation is proportionate to the interests at stake. A student who has missed a term of teaching due to an unlawful attempt to discipline him might be put on the County Court small-claims track. An academic dismissed from her well-paid professorship might well be assigned to the High Court.
These really aren’t difficult points to grasp, even for those of us limping through life with only one brain at our disposal. (Lord Willetts’s nickname when a Tory minister was “Two brains”.) Yet they never seem to gain much traction. It’s almost as if universities don’t want students and academics to be able to sue universities if their speech rights are violated, because then they might have to put their house in order and start pushing back a little more effectively against the worst excesses of campus cancel culture.
According to the Telegraph, Clause 4 is now “under threat”, although FSU General Secretary Toby Young says the situation represents a lobbying opportunity for those of us who want to restore the tort to its original form. Speaking to the paper, he said: “The Government amended the Bill to defang the statutory tort in the hope of winning round its critics in the Lords. Plainly, that hasn’t worked, so I very much hope the Government will restore the statutory tort in its original form when the Bill returns to the Commons.”
MPs will consider the Lords’ amendments when the bill returns to the House of Commons next year.
The FSU Christmas Special – a festive comedy extravaganza!
There are still a few tickets left for our live Christmas Comedy Special on Monday 12th December at the Backyard Comedy Club in London’s Bethnal Green. This is going to be a great night of comedy, so if you haven’t already done so, please round up your friends and family and book your tickets today – the link is here. Comedy legend Bobby Davro will be our Master of Ceremonies, and he’ll be joined on stage by stand-up comedian and GB News presenter Leo Kearse, Comedy Unleashed favourite Mary Bourke, and comedian and Radio 4 ‘personality’ Simon Evans. We’ll also be selling our Bob Moran ‘Orwell surprised’ t-shirts on the night, and this really will be your last chance to snaffle one before stocks run out. Details of our other forthcoming events, including the Regional Speakeasies taking place in early 2023, can be found on our events page, which you see here.
The FSU’s Christmas Review – register for the event here!
If you can’t make it to London for the Comedy Special, not to worry – you can join us online on Tuesday 13th Decemberfor our annual Christmas Review. The Review is a great opportunity for FSU staff and members to vote for 2022’s free speech heroes and villains and to discuss the year’s free speech highs and lows. Please note that this event starts slightly earlier than usual, at 6pm, so as not to clash with the World Cup semi-final at 7pm which – you never know – England might be in. You can register for the event by clicking here.
FSU Advisory Council member Professor Arif Ahmed appointed to the EHRC
Women and Equalities Minister Kemi Badenoch has announced the appointment of FSU Advisory Council member and Cambridge University Professor Arif Ahmed to the board of the Government’s Equality and Human Rights Commission (EHRC) (Times). According to one Government source, Professor Ahmed, a philosophy lecturer at Gonville and Caius College, was “exactly what the EHRC needs to defend free speech against those who seek to curb it” because he had “taken on vested interests and risked his career to champion free speech” (Telegraph).
Absolutely right. Back in October, Arif faced a backlash not just from students, but also his own colleagues after inviting Dr Helen Joyce, the former Britain editor at the Economist, bestselling author, and gender-critical feminist, to speak at Gonville and Caius College (Mail, Telegraph). Prior to the event, Professor Pippa Rogerson, the College’s Master, wrote to students to denounce Dr Joyce’s views as “offensive, insulting and hateful”, dismiss her written work as “polemics” and declare that she herself would be boycotting the talk (Spectator). It was an extraordinary intervention, and one that, as we pointed out in our letter of complaint to Dr Anthony Freeling, Cambridge’s Acting Vice-Chancellor, may well have breached the Master’s duty under s.43 of the Education Act 1986 to uphold free speech on campus. The University’s head of sociology, Professor Manali Desai, then decided to fire off her own communiqué to students: “We are sorry for the distress caused to you by the circulation of an email promoting the Helen Joyce event,” the voice of the Party blared over the telescreen. “We have looked at our processes and realised we need an authorisation route for circulation of events to ensure that administrative staff do not inadvertently promote potentially harmful material, as happened in this case.” (Telegraph).
The fact that Professor Ahmed is now joining the EHRC’s board, and will be among the experts charged with promoting and enforcing equalities legislation in the UK, is terrific news. In many ways, equalities legislation is the frontline in the ongoing battle to defend free speech in the workplace and the public sphere.
That is why it was so significant earlier this year that Kemi Badenoch, in her first appearance at the despatch box as Rishi Sunak’s Equalities Minister, made clear that the Equality Act 2010 was a shield and not, as many on the woke left seem to believe, a sword.
Perhaps the most rapier-like aspect to the legislation in recent years has been the ‘public sector equality duty’. As Toby Young points out, something that’s not widely known about the legal duty it imposes on public authorities to promote equality – between different groups in possession of protected characteristics, not social classes – is that it “isn’t particularly onerous” (Spectator). It has often been made to seem so, however, thanks to “the bureaucratic machinations of woke activists”, many of whom have a vested interest in exaggerating the compliance obligations, “either because they’re employed as equity, diversity and inclusion officers in the public sector or because they’re paid to deliver unconscious bias training to public-sector employees”.
In the FSU’s experience, it’s this over-interpretation of the equality duty that so often contributes to the infringement of peoples’ lawful right to free speech. Nowhere is that more so than in the higher education sector, where, as Sir John Hayes put it in the House of Commons earlier this year, “universities continue to use the Equality Act 2010 to elevate disturbance or distress above free speech’s ability to inspire, enthral and to move the academic agenda forward”.
Three years ago, for instance, Professor Jo Phoenix and Professor Rosa Freedman, both gender critical feminists – and both of whom the FSU stepped in at the time to defend (Telegraph) – were disinvited from two separate events at Essex University following protests from LGBTQ+ activists who claimed that allowing them to speak would be a breach of the University’s legal duty to protect minority students from being harassed or discriminated against under the Equality Act 2010.
This double no-platforming provoked such widespread condemnation that the University – which, needless to say, is a member of Stonewall’s Diversity Champions programme – eventually commissioned the equalities barrister Akua Reindorf to review its policies. She concluded that the University was in breach of its statutory duty to ensure freedom of speech for visiting speakers. Reindorf pointedly said that the University’s policies that had been invoked to no-platform Professors Phoenix and Freedman interpreted the law “as Stonewall would prefer it to be, rather than the law as it is” (Spectator, Critic).
Speaking earlier this year at an event hosted by the thinktank Politeia, FSU Chairman Professor Nigel Biggar decried the “rising tendency in universities not to argue with positions but to attack the persons who hold them, smearing them as racist or white supremacist, or transphobic, and clamouring that their research be shut down, and that they be disciplined or even dismissed” (Times Higher). What would help dampen this tendency, Professor Bigger argued, was “a revision of the Equality Act 2010, so that it cannot be argued, normally, that people holding a point of view you disagree with constitutes a form of harassment”.
In July, Rishi Sunak told a group of Conservative party members at a leadership hustings in West Sussex that he would ‘review’ the Equality Act if he became Prime Minister (Telegraph). Until that review takes place, the next best thing is having free speech campaigners of Professor Ahmed’s calibre on the board of the statutory body tasked with influencing public policy, informing debates, and monitoring the effectiveness of equality legislation in this country.
The ‘PayPal’ amendment to the Financial Services and Markets Bill – a turning point in the culture wars?
If there was any good to come out of PayPal’s attempted demonetisation of the FSU (and other organisations like the Daily Sceptic, the UK Medical Freedom Alliance and UsforThem) this summer, it was that it exposed a gap in the UK’s free speech protection – a gap that can, and surely must now be closed by the Government.
The recent digitalisation of financial transactions has placed a vast amount of power in the hands of financial services companies like payment processors, banks, online platforms and credit companies like Visa and Mastercard (Critic, Telegraph). Yet UK legislation has failed to keep pace with these rapid technological changes, leaving British citizens exposed to the risk of being punished by California-based Big Tech corporations simply for expressing legal, but dissenting, contrarian or sceptical views.
Yesterday, however, the Financial Services and Markets Bill returned to the House of Commons, and, as Guido points out, the latest version of the draft legislation will surely “encourage those who value free and easy debate on controversial issues”.
Specifically, New Clause 27, tabled by Sally-Ann Hart and Andrew Lewer, addressed “refusal to provide services for reasons connected with freedom of expression”, and stated that: “No payment service provider providing a relevant service may refuse to supply that service to any other person in the United Kingdom if the reason for the refusal is significantly related to the customer exercising his or her right to freedom of expression.”
There were some strong contributions in support of this amendment in the Commons on Wednesday. “Britain has led the world for centuries on democracy and freedom of speech,” said Sally-Ann Hart (Con, Hastings and Rye), and “it must now do so again against the global tech companies that want to… stifle free speech”. Miriam Cates (Con, Penistone and Stocksbridge) made the point that PayPal’s attempted demonetisation of the FSU was “not a one-off”, and that it was “therefore hard to avoid interpreting PayPal’s actions as an orchestrated, politically motivated move to restrict certain views in the UK”. She added: “We must act to legally prevent payment providers from closing accounts on the basis of political beliefs, because if we don’t global firms will put their own interests – financial, reputational, political – before any moral duty to act fairly.” Danny Kruger (Con, Devizes) also rose in support of New Clause 27, namechecking the FSU and arguing that “it is vital we send the strongest regulatory, but also cultural and political signal to private payment platforms, that the opinions of their customers are none of their business”.
We’d like to take this opportunity to thank all our members who used our campaigning tool to email their MPs urging them to support the amendment because, thanks to your efforts, there was a good outcome. Andrew Griffith, the Financial Secretary of the Treasury and the Minister responsible for this Bill, said he “empathise[d] strongly with colleagues’ concerns on the principled issue and potential risks – of protecting customers’ freedom of expression – and whether or not it is possible for service providers with significant market positions to terminate customer relationships at will and at speed”. He also said he planned “to take evidence on this in the forthcoming statutory review of the Payment Services Regulations, due in January 2023, which will be a public consultation”. On the understanding that the Minister will include this issue in the terms of the reference in this forthcoming consultation, the amendment was withdrawn – but the battle is far from over. Next month, we will publish details of how our members can most appropriately engage with the consultation and make it clear to the Government that we want to see this creeping trend towards Big Tech platforms financially censoring customers who express dissenting views checked before it becomes institutionally normalised. We need to stop the emergence of a Chinese-style social credit system dead in its tracks.
Mr Griffith’s remarks had an encouraging pay-off too: “Should the evidence [i.e., from the public consultation] point to the need for legislative change, I can confirm to Parliament that this could be delivered quickly via the powers being taken in the Bill in relation to modifying EU law (in this case, payment services law). Colleagues can be assured, therefore, that if legislative change is required, it could be brought about swiftly, without future primary legislative change.”
Improving free speech protections in the arts
The FSU had one other triumph this week (it’s been a busy week). On Sunday, we helped a whistleblower who works for Arts Council England (ACE) to publicise her concerns about the discrimination within the Council against the LGB Alliance and other organisations that challenge gender identity ideology. The LGB Alliance had been awarded a grant by a body funded by ACE, but that grant was withdrawn after an extraordinary meeting in which ACE employees took turns to condemn the charity as a “cultural parasite” and “glorified hate group” (Telegraph). Yesterday, the CEO of ACE, Dr Darren Henley, appeared as a witness at a DCMS select committee hearing and was asked about this episode by Damian Green MP (Con, Ashford). Dr Henley gave a very encouraging response, emphasising how much he believes in free speech: “We have looked at that and reminded those people involved of the processes that we need to go through. We absolutely protect everybody’s right to freedom of expression and all protected characteristics are recognised and observed fully right the way through the Arts Council, and I believe very strongly in that.” (Telegraph.)
Give someone the gift of FSU membership for Christmas
If you’re looking for the perfect Christmas gift, look no further! We’ve created a gift voucher that grants the recipient one year’s membership of the Free Speech Union. You can find it here.
Not only will the receiver get invitations to Speakeasies, discounted tickets to our events, access to valuable resources, and our vital support if they’re unlucky enough to be targeted for cancellation, but your generosity will also be contributing to the greater cause of protecting free speech for all.
Once you’ve landed on the relevant page, just select the tier of membership you’d like to buy – Gold or Full – enter the recipient’s email address, your name, and a personalised message, before completing the purchase, not forgetting to say what time you’d like them to receive it. It can be Christmas morning if you like.
To redeem the voucher, all the information the receiver will need is included in the gift email. They will be directed to the normal joining page, where they will select the tier corresponding to the gift, enter the code, put in their payment details – although they won’t be charged for a year – and hey presto! They won’t stop thanking you.
Perfect for politically correct children and grandchildren who imagine they’ll never be cancelled in a million years, only for their friends and colleagues to turn on them in one of those all-too-familiar, kill-the-heretic feeding frenzies that characterises the woke ‘community’.
Sharing the newsletter
As with all our work, this newsletter depends on the support of our members and donors, so if you’re not already a paying member please sign up today or encourage a friend to join, and help us turn the tide against cancel culture. You can share our newsletters on social media with the buttons below. If someone has shared this newsletter with you and you’d like to join the FSU, you can find our website here.
Best wishes,
Freddie Attenborough
Communications Officer