My Lords, we have begun our debates in Grand Committee with a group of amendments all of which, in one way or another, address the main duties in the Bill relating to freedom of speech.
Amendment 1, introduced by the noble Baroness, Lady Smith of Newnham, would add the words “within the law” and is intended, as she explained, to ensure that the reference to the importance of freedom of speech in new Section A1 is identical to that within new Section A3. Let me straight away assure her that the speech protected by the Bill is only speech that is within the law.
The duty in new Section A1 to have particular regard to the importance of freedom of speech is part of the duty to take reasonably practicable steps to secure freedom of speech within the law. It emphasises the significance of freedom of speech as a concept and ideal, but a provider needs only to take reasonably practicable steps to secure freedom of speech if that speech is within the law. So the reference to freedom of speech within the context of the duty to have particular regard does not need the narrowing descriptor of “within the law”.
This is different from the duty in new Section A3, under which a provider must promote the importance of freedom of speech within the law. The duty to promote is about encouraging a culture of free and open discussion on campus. In this context, the importance of freedom of speech does need the narrowing descriptor of “within the law”.
Amendment 2 seeks to make clear in the Bill that freedom of speech in the Bill is an aspect of freedom of expression under Article 10 of the European Convention on Human Rights. I listened with great care to the noble and learned Lord, Lord Hope, and those who spoke in support of what he said. Amendments 3 and 28 also propose definitions of freedom of speech. Amendment 36 seeks to prevent freedom of speech being used as a defence against behaviour which amounts to harassment under the Equality Act.
Freedom of speech is a term that has been used in domestic legislation in a higher education context since the Education (No. 2) Act 1986. It is well understood in that context and there is no intention to change its meaning in this Bill. It is important to note, for example, that it covers both verbal speech and written material, including in electronic form. Accordingly, freedom of speech is a broad concept, and is indeed protected under Article 10 of the ECHR as an aspect of freedom of expression. It is worth adding that
Article 10 includes the freedom to receive information from other people by, for example, being part of an audience or reading a magazine, which this Bill does not cover.
There is, in fact, already a non-exhaustive definition of freedom of speech in new Section A1(11), which provides that
“references to freedom of speech include the freedom to express ideas, beliefs and views without suffering adverse consequences”.
We did not consider it necessary to include in this definition a reference to Article 10. The Human Rights Act requires that, so far as possible, legislation
“must be read and given effect in a way which is compatible with”
the rights under the ECHR. We are clear that the Bill is entirely consistent with that requirement.
The activities mentioned in Amendment 3—teaching, researching, engaging in intellectual inquiry, contributing to public debate and criticising any institution—are all covered by the concept of free speech as just described. However, affiliation to an institution and being a member of a trade union body are not per se matters of speech and so are not covered by a Bill that is about speech.
As regards Holocaust denial, referred to in Amendments 3 and 28, let me make clear that any attempt to deny the scale or occurrence of the Holocaust is morally reprehensible and has no basis in fact. In many cases, those who deny the Holocaust also have links to neo-Nazi extremism, anti-Semitic violence and intimidation. The European Court of Human Rights has held that Holocaust denial is not protected speech under Article 10 of the ECHR, as such speech is intolerable in a democratic society, and that Holocaust denial, even if dressed up as impartial historical research, must be seen as connoting an anti-democratic ideology and anti-Semitism.
There is no place in universities for extremist views that masquerade as facts but are in fact complete fiction and are deeply offensive. We certainly do not encourage higher education providers, constituent colleges or student unions to invite individuals who deny that the Holocaust ever happened to speak on campus. However, I should note that it is not the intention of the Bill to change what speech is held to be lawful or unlawful.
I turn to other aspects of my noble friend Lord Moylan’s amendment. It is not necessary to specify that speech that is unlawful, whether because it is in breach of a legal duty, a confidentiality agreement or intellectual property rights, is not included. Finally, on the element of Amendment 28 relating to the Equality Act, and also Amendment 36, it is important to note that, when considering a claim of harassment, courts and tribunals must balance competing rights on the facts of a particular case, which could include the rights of freedom of expression, as set out in Article 10 of the ECHR, and academic freedom, as set out in the Explanatory Notes to that Act. Guidance has specifically made clear that the harassment provisions cannot be used to undermine academic freedom.
Amendments 9, 10, 27 and 42 are designed to probe the meaning of “beliefs”. As I mentioned earlier, new Section A1(11) has a definition of freedom of speech which includes
“the freedom to express ideas, beliefs and views without suffering adverse consequences”.
This builds on the current wording of the Education (No. 2) Act 1986. It is vital that students, members, staff and visiting speakers can speak freely on campus about their beliefs, without damaging their prospects or suffering other repercussions. Beliefs are not the same as views.
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In terms of the interaction of the Bill with other areas of law, the key point is that religion or belief is a protected characteristic under the Equality Act 2010. There is a test for what is a protected philosophical belief, but under the Bill the test is simply whether the speech is within the law, to ensure that there is freedom of speech on our campuses in the widest sense. I emphasise that the duty in the Bill to take reasonably practicable steps—