I apologise to the Committee. I know that I have been speaking for a long time, but this is the very issue that I was about to come on to next, if my noble friend will allow me.
Amendment 13, which is the amendment that my noble friend was referring to, seeks generally to strengthen the test for what is “reasonably practicable”. It would mean that, in relation to speech of a political, philosophical or academic nature, it would always be reasonably practicable not to interfere; in relation to other speech, it would be reasonably practicable only if taking that step would prejudice the functioning of the provider. I hope that I have paraphrased the issue correctly.
The Government’s position, supported by the OfS, is that we stand for the widest possible definition of free speech—anything within the law—and that, where debate is particularly contentious, it is all the more important that everyone feels able to put forward their views and arguments and be heard, on all sides.
The “reasonably practicable” wording of the main duty means that providers can take account of all their legal duties on a case-by-case basis. But I must be clear that my noble friend’s proposed strengthened test goes too far in not allowing providers to take account of all the relevant circumstances, including their other legal duties—for example, to prevent unlawful discrimination or harassment, or to comply with the Prevent duty so as to stop students and others being drawn into terrorism. There may be occasions where it is not reasonably practicable to secure freedom of speech of a political, philosophical or academic nature, even if that speech is lawful, and we must not impose a test that has so few exceptions.
If I might address the point made by the noble Lord, Lord Triesman, about conspiracy theories, the question of whether espousing a conspiracy theory is lawful depends on what is said. If it is defamatory, it would be unlawful. The point of the Bill is to take a wide approach to freedom of speech as a fundamental principle in a democratic society, but there is nothing in the Bill to encourage baseless or harmful claims, or bad science, on campus, for example.
Amendment 25 seeks to clarify the position regarding balancing the right to freedom of speech with the right to protest. The purpose of the Bill is to protect freedom of speech, but the right to peaceful protest is a fundamental tool of civic expression and will not be curtailed by this Government. Of course, it can itself be an aspect of freedom of speech. If there is a protest against a particular academic because they have said something controversial but lawful, providers will need to decide what reasonably practicable steps they can take to ensure that the academic can speak freely.
The intended effect of the Bill is not to prioritise one right under the ECHR—that is to say, freedom of expression under Article 10—over others, such as the right to protest under Article 11. The requirement to have “particular regard” to the importance of freedom of speech builds on existing provision under Section 43 of the Education (No. 2) Act 1986 and could, in a particular case, prompt a higher education provider to prioritise freedom of speech over another convention right. However, this would remain subject to its assessment of what is reasonably practicable and would need to be lawful.
It is worth noting that a provider’s code of practice under new Section A2 must include the procedures to be followed when organising meetings and activities, as well as the conduct required in connection with them. This will ensure that staff and students are aware of their responsibilities as regards their own conduct.
The noble Lord, Lord Hunt, suggested delaying Royal Assent to allow universities due time. Let me confirm to him now that implementation of the Bill will not be rushed. Various actions need to be taken before the new regime can come into force, including
consultation with the sector and the provision of guidance, so providers, colleges and student unions will be fully engaged and able to understand their responsibilities under the Bill.
I turn next to Amendment 30 in the name of my noble friend Lord Sandhurst, which seeks to ensure that codes of practice have a process in place for dealing with meritless claims against staff and students. It is an important point that providers should not have to spend time and resources responding to frivolous or vexatious complaints. However, I should make it clear that the duties in the Bill are imposed on the governing body of registered higher education providers. There cannot be complaints made under the Bill about the freedom of speech duties against staff, members and students of the provider, or visiting speakers, as the amendment suggests. Higher education providers will in any case have their own procedures already in place for handling internal complaints. As for burdens on providers, unnecessary bureaucracy can take up time that could be spent focusing on the academic experience and high-quality teaching, but these measures are absolutely necessary to protect the core value of freedom of speech and we consider that the duties imposed are proportionate and appropriate.
I hope my remarks have provided noble Lords with reassurance about the Bill’s approach regarding the main duties set out in it and that they strike the right balance.