My Lords, I did speak at Second Reading, so I really am not going to make a Second Reading speech; I am not going to say I am not and then do it. Although I have been clear that I think the Bill is a mistake that will lead to a great deal of time-consuming, heartbreaking and expensive litigation for our universities, which should instead be engaging in what they should be engaging in, including creating the culture that we all want, I say in some sort of spirit of bipartisanship to the noble Lords and Ministers opposite that the amendment from the noble and learned Lord, Lord Hope, is a learned and friendly gesture indeed.
All these amendments and everything that I have heard so far merely emphasise the dangerous complexity of legislating so clearly in the realm of a convention right without referring to it at all, save the statement that the Minister is required to make on the cover of the Bill about compatibility with Article 10. It is clearly the Government’s intention that this Bill, wrong-headed though I think it is, should comply with Article 10, so to try to redefine Article 10 in a slightly different way in the body of the Bill is a mistake that adds to the complexity and the danger for different regulatory bodies, be it the Equality and Human Rights Commission or the Office for Students. The noble and learned Lord has helped by making it clear that freedom of speech within the law in the United Kingdom means compliance with Article 10 of the convention. Frankly, that was pretty much the case before incorporation by way of the Human Rights Act.
I take the point from the noble Lord, Lord Moylan, that, with the resurrection of the former Justice Secretary and Deputy Prime Minister, he wants to future-proof
and hopes for the scrapping of the Human Rights Act, but even the rather botched and misnamed Bill of Rights Bill purports to comply with Article 10. It is jumping the gun to try to define freedom of speech within this sector differently from the way it is defined in every other aspect of UK law and life.
I also say to the noble Lord, whose libertarian instincts on free speech I share, that, as a matter of jurisprudence and law, he is mistaken in a number of ways. It is all very well banging the drum for the common law, but there literally was no actionable right to free speech in this country until Article 10 was incorporated by the Human Rights Act. There could be under a future Bill of Rights, but there literally is not this magic thing in the common law that will protect people’s free expression without Article 10. Why? Because Parliament is sovereign and every other law that impacts on free speech will trump the free speech that I believe the noble Lord wants to see. Evidence for that lies in the issues around policing and all the other things that he has touched on in the Chamber in his time in the House. Parliamentary sovereignty will trump common law, and without Article 10 there is currently no actionable right to freedom of expression in this country.
With respect, his Amendment 28 fails to achieve what he would like. It is much more limiting a protection than the protection in the extensive jurisprudence of Article 10. For example, to say:
“‘Freedom of speech within the law’ means”
freedom of speech that
“is not prohibited by law”
is somewhat circular.
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Crucially, to give a great big “get out of jail free” card for any confidentiality agreement will make a lot of people very nervous about the way in which such confidentiality agreements have been used and abused by the powerful against employees and other staff in recent years. The beauty of Article 10 is that it would not be open to a funder or a university to construct such a non-disclosure agreement in a way that did not comply with Article 10. They are public authorities under the Human Rights Act. As long as we have the Human Rights Act, they must honour their Article 10 obligations to protect people’s free speech, even when they are considering employment contracts, confidentiality agreements and so on. It is a mistake—and it interferes with the precious right to free speech—to make exceptions in that way.
Finally on this whole issue of the relationship between Article 10 and the Bill, the point from the noble Lord, Lord Moylan, worrying about the jurisdiction of the Strasbourg court because it is an appeal court, as he put it, is not quite right. He will appreciate that only victims of human rights abuses can go to the Strasbourg court, not the Government. It is really our own Supreme Court here in the UK that is a proper appeal court and referee in relation to free speech. If people are unhappy about what the Supreme Court has found, only a victim—not a public authority or the Government—can seek further redress in the Strasbourg court.
The noble Lord, Lord Moylan, will also know that our courts, and ultimately our Supreme Court, need only take account of the Strasbourg jurisprudence; they are not bound by it. So Article 10 is actually squarely in the hands of our own judges to make their own jurisprudence.
Universities are already public authorities under the Human Rights Act. If they are not discharging their duties currently, that will partly be a matter of culture. It may also be a matter of students, academics and others not having the confidence to challenge universities, or perhaps not having access to legal aid in order to do so.
We will come on to the mechanisms of complex litigation later. I commend Amendment 2 from the noble and learned Lord, Lord Hope, and my noble friend Lord Triesman. While I disagree with the Government, I think they would be very wise indeed to accept it.