The Westminster government’s campus free speech bill has drawn fierce criticism from two former Conservative universities ministers, concerned that it opens the door to “vexatious and complex legal proceedings” against English universities and to ministerial “control-freakery” on institutions’ overseas funding.
The Higher Education (Freedom of Speech) Bill, which aims to “protect lawful freedom of speech” on English campuses, had its second reading in the House of Lords on 28 June, having passed through the House of Commons.
Peers will seek to amend the bill, which has brought claims that the Conservative government is using it to wage a culture war on universities.
The bills covers the appointment of a free speech and academic freedom champion to the board of the Office for Students, the strengthening of existing free speech duties on universities and the extension of them to students’ unions, and would enable individuals to sue institutions over breaches of free speech duties.
Lord Willetts, a Tory universities minister between 2010 and 2014, told peers that there were “real concerns of substance about this proposed legislation”.
There was “a very significant new regulatory responsibility” for the Office for Students plus a new statutory tort allowing individuals to sue “which could well mean that there will be vexatious, difficult and complex legal proceedings”.
Lord Willetts asked whether the government could “explain why, faced with what is often a policy choice between going down the regulatory route or the legal protection route, both are to be applied in this legislation”.
On whether the aim was for all lawful speech to be permitted in universities, he also highlighted the difficulties higher education minister Michelle Donelan ran into when she “said that [the bill] would enable Holocaust deniers to speak and was promptly slapped down by No 10 saying that they should not”.
Lord Willetts continued: “If, as I suspect, in reality there will be statements that the minister [in the Lords] would expect not to be protected by the new director of free speech, he will understand as soon he has conceded that point why the appointment matters so much.
“We are passing legislation that will enable a regulator not to protect under free speech [laws] free speech which, nevertheless, in its most absolute form, would be allowed. No wonder there is considerable anxiety in this House about that power.”
Meanwhile, Lord Johnson, whose second spell as a Tory universities minister ended in 2019, highlighted concerns about the government amendment to the bill that would force universities to report any overseas funding over £75,000 to the OfS.
To ask UCL, for example, with an annual income of about £1.6 billion, “to devote resources to counting every dollop of £75,000 that might come from an overseas source in this way is ridiculous”, he said.
“A more suitable threshold might be £1 million,” he suggested, criticising the “control-freakery of the proposed threshold” of £75,000.
Baroness Royall, a Labour peer and principal of Somerville College, Oxford, said that “in seeking to fix something that is not truly broken”, the bill “could be seen as yet another spark to inflame the culture wars”.
On the government’s ongoing process to appoint a director of free speech, she warned that the appointee would have “sweeping powers, act as judge, jury and executioner in free speech complaints and potentially monitor overseas funding of universities”.
