My Lords, I would like to address the group of amendments concerning the free speech duties. As your Lordships have already noted, we had an important debate on these issues in Committee which sought to bring clarity and consistency both to the definition of freedom of speech and what the Government mean by “within the law”. Our amendments seek to address the first of these points. I hope that my remarks will cover the latter. I am disappointed that my noble friend Lord Moylan still thinks we are muddled on this issue; I will do my best to bring a little clarity.
Amendment 7 amends the provision in new Section A1(11), which currently sets out what freedom of speech as referred to in this Bill includes. The amendment refers to the
“freedom to impart ideas, opinions or information …by means of speech, writing or images (including in electronic form)”.
This wording is derived from Article 10(1) of the European Convention on Human Rights, which is also used in the Bill of Rights Bill. This was a particular concern of the noble and learned Lord, Lord Hope. There is also a reference to Article 10(1) of the ECHR as incorporated by the Human Rights Act 1998. This has been carefully drafted to reflect the fact that the freedom of speech in this Bill is a broader concept than freedom of speech in Article 10 because students’ unions are not public authorities and are not subject to the ECHR.
The other amendments are consequential. For example, they refer to “ideas or opinions” in certain provisions rather than “ideas, beliefs or views”. That is to reflect Amendment 7 and is not intended to change its meaning. I will comment on the phrase “within the law” when I respond to the noble and learned Lord’s Amendment 10.
As your Lordships are aware, these amendments are in response to Amendment 1, which was moved and eloquently explained by the noble and learned Lord, Lord Hope of Craighead. This is similar to our amendments, but we have some issues with it. The wording is from the Bill of Rights Bill, but this amendment would cause difficulties if inserted into this Bill. First, as I have already said, it is not right regarding the application of Article 10 to students’ unions. Secondly, it refers to the “right” to freedom of speech, which would lead to new Section A1(2), a duty to take steps to secure an individual’s freedom of speech—by which we mean the exercise of that freedom—instead being a duty to take steps to secure an individual’s right to freedom of speech. This is not what is intended in the Bill.
Regarding consistency with the Online Safety Bill, that Bill does not refer to freedom of speech but rather to the wider concept of freedom of expression. My sense was that the noble and learned Lord is not planning to press this amendment. I hope he will accept that the government amendment answers his concerns and those of the other signatories to Amendment 1.
Amendment 10, also tabled by the noble and learned Lord, seeks to define “within the law” as regards freedom of speech under the Bill. This Bill does not change an individual’s right to freedom of speech. That right is established in common law and under Article 10 of the ECHR, as incorporated into UK law by the Human Rights Act. People are free to say what they want, so long as their speech is not prohibited under the law. As the noble and learned Lord explained, the right to freedom of speech is a qualified right, meaning that, for example, there is no right to incite racial hatred or to harass others. I am aware that my noble friend Lord Moylan is concerned that freedom of speech is perhaps becoming more qualified by some of the restrictions set out in Article 10(2) but that is beyond the scope of this Bill which does not change how Article 10(2) applies.
This Bill does not change what is or is not lawful under UK law; that is for other legislation to do. The reference to
“freedom of speech within the law”
in new Section A1(2) simply means freedom of speech that is lawful. It might be helpful to note that we do not understand there to be a legal duty
“to respect the rights of others”,
as specified in the amendment.
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It is vital to understand that new Section A1(2) cannot be read in isolation. It is part of the duty on providers to take reasonably practicable steps to secure
“freedom of speech within the law”
for staff, members, students and visiting speakers. The purpose of that reference to freedom of speech within the law is to set the scope of the duty such that it applies only as regards lawful speech. I hope that this explanation offers reassurance to your Lordships.
I turn to Amendment 6, tabled by the noble Lord, Lord Collins of Highbury, which seeks to prohibit providers and constituent colleges from entering into non-disclosure agreements with staff, members, students and visiting speakers in relation to complaints of sexual misconduct, abuse or harassment or other forms of bullying or harassment. I thank the noble Lord for tabling this amendment following the debate in Committee and in the other place. As your Lordships will have seen, I have put my name to the amendment.
While the very existence of NDAs makes it difficult to understand the full extent of the practice, a 2020 BBC investigation found that nearly one-third of universities had used NDAs to resolve student complaints. 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.