§ Before Clause 39, insert the following new clause:
§ "Freedom of speech in universities, polytechnics and colleges.
§ .—(1) Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.
§ (2) The duty imposed by subsection (1) above includes (in particular) the duty to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with—
- (a) the beliefs or views of that individual or of any member of that body; or
- (b) the policy or objectives of that body.
§ (3) The governing body of every such establishment shall, with a view to facilitating the discharge of the duty imposed by subsection (1) above in relation to that establishment, issue and keep up to date a code of practice setting out—
- (a) the procedures to be followed by members, students and employees of the establishment in connection with the organisation—
- (i) of meetings which are to be held on premises of the establishment and which fall within any class of meeting specified in the code; and
- (ii) of other activities which are to take place on those premises and which fall within any class of activity so specified; and
- (b) the conduct required of such persons in connection with any such meeting or activity;
§ (4) Every individual and body of persons concerned in the government of any such establishment shall take such steps as are reasonably practicable (including where appropriate the initiation of disciplinary measures) to secure that the requirements of the code of practice for that establishment, issued under subsection (3) above, are complied with.
§ (5) The establishments to which this section applies are—
- (a) any university;
- (b) any establishment which is maintained by a local education authority and for which section 1 of the 1968 (No. 2) Act (government and conduct of colleges of education and other institutions providing further education) requires there to be an instrument of government; and
- (c) any establishment of further education designated by or under regulations made under section 287 of the 1980 Act as an establishment substantially dependent for its maintenance on assistance from local education authorities or on grants under section 100(1)(6) of the 1944 Act.
(6) In this section—
governing body", in relation to any university, means the executive governing body which has responsibility for the management and administration of its revenue and property and the conduct of its affairs (that is to say the body commonly called the council of the university);
university" includes a university college and any college, or institution in the nature of a college, in a university.
§ (7) Where any establishment—
- (a) falls within subsection (5)(b) above; or
- (a) falls within subsection (5)(c) above by virtue of being substantially dependent for its maintenance on assistance from local education authorities;
§ (8) Where a students' union occupies premises which are not premises of the establishment in connection with which the union is constituted, any reference in this section to the premises of the establishment shall be taken to include a reference to the premises occupied by the students' union."
§ Lord Houghton of Sowerby
My Lords, will the noble Baroness permit me to raise this point of order. Before we go on to rowdyism on the campus I was thinking that we ought to have the Statement about teachers' pay. Is there a suitable moment at which we shall have it? It is now half past four.
§ Baroness Young
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 82.
This is an important amendment. The idea that a clause on freedom of speech should be included in the Education Bill originated in your Lordships' House. But the circumstances were such that the amendment which the Government undertook to lay before the House had to be drafted in haste. Your Lordships will recall that much concern was expressed at Third Reading about the short notice which the House had had of the content of the clause then proposed and over the fact that there had been no time for consultation with the higher education authorities over its practical implications. I gave an undertaking then that the Government would undertake such consultation and would move in another place an amendment which took account of the views of the institutions.
They did so. This clause is the outcome of that undertaking. It was debated at length in another place last week. The majority in favour of the clause was very substantial. We have rejected the argument that the clause is unnecessary and will do no good and we have reaffirmed our commitment to legislation on this subject first given in response to the wishes of your Lordships' House. The Government do not pretend that the clause is a panacea. But the clause as now drafted is to meet the very real doubts expressed by your Lordships. It is a statement of broad general principle, which imposes on institutions a general duty to secure freedom of speech and leaves each institution free to settle the arrangements for fulfilling that duty.
Various situations have been postulated in which it is claimed that the clause could give rise to an unintended result but many of these seem based on a construction which, in the Government's considered opinion, the clause could not reasonably bear. To have attempted a clause in more specific terms designed to deal with every situation that might give rise to difficulty or to the possibility of an unexpected interpretation by the courts would have been neither advisable nor practicable. We should rely on the courts to interpret this clause sensibly.
The Government are clear that their broader approach is by far the best because it leaves the detailed arrangements for securing freedom of speech to the initiative of each institution which will be able to tailor the code of practice it is required to produce under subsection (3) to its individual circumstances.
The Government believe that a great strength of the clause, as my honourable friend the Parliamentary Under-Secretary of State pointed out last week, is that its effect will be to concentrate the minds of institutional authorities on their existing arrangements and procedures, which in many cases will clearly need to be revised. There are already examples where institutions that have suffered from violent protests in recent months are re-examining their internal rules and disciplinary procedures. The clause would require all to address these matters, in the light of the duty being placed upon them to take all reasonable practicable steps to protect freedom of speech within the law.
There will, I know, be a number of specific points raised about this matter. At this point in moving the 817 amendment, I should like to say to your Lordships' House that this is a matter to which the Government attach great importance. We believe that there is a great public demand for it. There have unhappily been sufficient numbers of examples where freedom of speech has not been possible in institutions where one should have thought that would be possible, and we therefore hope that your Lordships will agree with the Commons in this amendment.
Moved, That this House do agree with the Commons in the said amendment.—(Baroness Young.)
§ 4.30 p.m.
§ Lord McIntosh of Haringey
My Lords, the noble Baroness is certainly right in saying that there have been a number of very unfortunate and unhappy occasions recently on which there have been breaches of freedom of speech in our universities and colleges. It must be common ground among all Members of your Lordships' House that this is not an acceptable state of affairs, and that every effort must be made to ensure that it does not happen again.
The question, however, before your Lordships' House is whether the clause as drafted will achieve the objectives that we all share. The noble Baroness was also right in reminding the House that, when the matter was considered on Third Reading, it was not possible to deal with the substantive issues raised by the clause then proposed because—as the Government admitted—of the lack of time available to consider the proposals.
Without going into any detail about the previous amendment, I think that it was already apparent that it had grave defects in that it referred to "duly invited" speakers going to a university or college, and it was the duty of the university or college to decide what was meant by "duly invited". It was clear to many of your Lordships that the way in which universities or colleges would interpret the phrase "duly invited" would be to avoid any risk of breach of freedom of speech or breach of the peace, and that therefore the result of restrictive codes of practice on due invitation would be to restrict the amount of freedom of speech rather than to increase it. Had we been debating the issue on Third Reading, I should have advised my noble friends to vote against that amendment.
We are now faced with a totally different amendment. The Government have abandoned the idea of due invitation and have gone right to the other extreme. The Government now say in this amendment that every individual and body of persons concerned in the government of any establishment shall have the duty to secure freedom of speech within the law and to ensure,that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with—(a) the beliefs or views of that individual or of any member of that body".I emphasise the word "any" because that shows the breadth of the amendment now proposed and indeed the total impracticability of the amendment.
Let us look at,any individual or body of personsVol. 481818 concerned in the government of any establishment. I am never sure whether, as a graduate of the University of Oxford, I am a member of convocation or congregation. I know it is one of the two, but I can never remember which. Therefore to some extent, if only in the election of a professor of poetry, I am involved in the government of the University of Oxford.
I invite your Lordships to think how many of you are in some way involved in the government of a university or college, not merely those noble Lords who are active vice-chancellors or recently retired vice-chancellors or chancellors, but also anyone with any involvement in the government of any university who is now caught by this clause, and has the statutory responsibility laid down in the clause. That is the first difficulty with the amendment.
I now turn to "any premises" of the establishment. Any premises, my Lords? The Master of Balliol, in a very effective article in The Times last week, pointed out what the use of the phrases "any premises" and "any individual or body of persons" could mean. He gave two specific examples. The first was that the Moonies could ask a college chaplain for permission to hold a missionary service in the college chapel. The chaplain could not refuse because the grounds on which he would be refusing would be grounds connected with the beliefs or views of the individual or any members of the body. He could not refuse by offering another part of the premises because the clause says "any premises", not, "any premises chosen by the governing body". It would be a denial of freedom of speech to have it moved to the pavilion of the playing fields five miles away from the university premises.
The other example that the Master of Balliol gave—another very real example—is that a member of Provisional Sinn Fein may write asking for the use of a seminar room to put forward the views of Provisional Sinn Fein. There is nothing in the clause that enables the governing body of a higher education institution to deny that application.
There are many other difficulties. There are difficulties in the public sector of higher education about the role of the local education authorities. There is the whole question regarding in what circumstances the provisions of the clause conflict with the duties on governing bodies to prevent likely breaches of the peace. There is the whole question of whether expressions of view within the law can be determined in advance. Much of the debate on the Public Order Bill centred on those points. The point I wish to make above all is that there is no discretion allowed to governing bodies, which are as widely defined as it is possible to define them, and that the result would undoubtedly be chaos in the administration of the universities and colleges of this country.
I shall be inviting my friends, and I invite all those of your Lordships who have any concern for higher education, to reject the amendment.
§ Lord Flowers
My Lords, I am a serving vice-chancellor at the present time. In spite of what the noble Lord, Lord McIntosh, has said, it is upon the likes of me that the duty proposed in Amendment No.
819 82 will primarily fall. Nevertheless, I shall be as brief as is reasonably practical. I gladly accept that duty, of course; let there be no question about that. I shall strive always to preserve within my university the right to free speech within the law for the staff, for the students and for legitimate visitors. It is something profoundly to be cherished everywhere, but most especially in universities where rational argument should always be the order of the day. I need no Act of Parliament to tell me that.
The question therefore arises whether the proposed legislation will help or hinder me in the execution of my duty. I have come to the conclusion—contrary, I regret to say, to what the noble Baroness, Lady Young, has said—that it will probably hinder. For that reason and that reason only I intend to oppose it. I am no lawyer, but the amendment reads oddly to me. It defines a general duty in the vaguest of terms, but immediately relies upon each university issuing a code of practice to clarify what that duty consists of within that university. We do not need to be told by Parliament to issue codes of practice.
I must say that I take great exception to certain remarks made in another place on 21st October, admittedly at an hour when it is better for all honest folk to be in bed, to the effect that vice-chancellors had not committed themselves collectively to uphold the right to free speech. It was on 13th December last that the Committee of Vice-Chancellors and Principals issued quite unambiguous guidelines to all universities on what was required of each of them in order to deal with a problem of growing public concern. We are now at various stages of putting those guidelines into effect.
I can well understand the impatience of those who see little practical outcome so far, and can see evidence that the problem is getting worse rather than better. The fact is that legislation or no legislation the universities will do their best to follow the guidance of the CVCP because it is better for all concerned that we respond in a reasonably uniform manner to problems of this kind.
The guidance is tough and specific, and the proposed legislation adds nothing to it. Let us consider what the guidance says. Briefly, it says that universities should check that their disciplinary codes make adequate provision and provide adequate penalties. University premises should be used only by those who seem reasonably likely to comply with all lawful instructions issued by the university. Advance notice must be given of meetings to be addressed by visiting speakers, and so on, in quite specific detail.
The amendment adds nothing to all this. On the contrary, it seems likely to provide a rich source of legal disputation for many a year to come. Mr. George Walden in the nocturnal debate to which I have already referred, tried to assure his critics that the amendment did not really mean what it had seemed to them to mean. He said that to ensure freedom of speech within the law does not impose a duty to ensure that what is spoken is within the law. A visiting speaker is not someone who turns up unsolicited to speak. To ensure that the use of any premises is not denied does not imply a right to demand access to a particular part of an institution. The duty to uphold 820 freedom of speech does not prevent the cancellation of a meeting at which there is a substantial risk of a breach of the peace. I am comforted, but not much, until I have heard the judges pronounce in my favour when I appear before them because Mr. Walden's assurances do not stand part of the proposed legislation. The drafting leaves much to be desired, and I hope noble Lords, more learned in the law than I, will pay careful attention to that.
Perhaps I may make one final remark. The events complained of, inexcusable and intolerable though they may be, are but a tiny proportion of the events that take place every day in our institutions of higher education and go off without a hitch of any kind. I include a great many events where there are so-called controversial speakers addressing potentially hostile audiences. Most of the exceptional cases start misguidedly to be sure, but not dishonourably, from a total condemnation of some of the worst trends of our society—the chief ones being racism, fascism, sexism. Of course, that is the origin of the no platform policy espoused by some student unions (although not mine), and by the National Union of Students. However, the students also know that when a speaker is invited who is likely to promulgate such views; external influences—I mean intruders who are not students but who cannot be kept out without action which is itself of doubtful legality, and is certainly repugnant to all concerned—will see to it that the ensuing protest is not confined to reasonable debate or heckling or even verbal uproar but will rapidly degenerate into physical violence.
Nothing in this amendment will in any way ameliorate this problem. On the contrary, it will make it worse. Misguided though it might have been, the no platform policy had at least this merit that it prevented some violence from ever taking place.
The grace which we pronounce on solemn occasions in the University of London describes the university as a "free and learned society". This amendment introduces concepts, and assumes procedures, that are completely foreign to such a body. By doing so it makes the task of the university authorities in trying to guarantee freedom of speech within the law less clear and therefore more difficult. Therefore, if the amendment is pressed to a vote, I shall vote against it.
§ 4.45 p.m.
§ Baroness Cox
My Lords, I rise to support this amendment in the strongest possible terms. It seems to me that the need for legislative measures to provide protection for freedom of speech on our university and college campuses is becoming increasingly more urgent. Recent events have shown that violations of this fundamental freedom in our academies are still occurring with alarming persistence.
Your Lordships will remember that only a few months ago, Professor Vincent was subjected to violent abuse at Bristol University. He was prevented from carrying out his normal teaching duties and experienced very frightening physical intimidation. The threat of further action of that kind has now caused him to take a year's leave from his teaching duties. His crime was writing for a newspaper printed at Wapping.
821 More recently your Lordships' will have read about David Selbourne's treatment at Ruskin College, Oxford, where he too was prevented from teaching for committing the same heinous crime. We have seen recently the violence meted out to Enoch Powell who was prevented from speaking at Bristol University after being duly invited. Those are just three examples of the kind which have hit the headlines. However, at least as serious, if not I believe more sinister, are those which the public does not generally hear about. I refer to pressures put on staff and students not to invite certain speakers because they may cause trouble, and to many cases where invitations to speakers, once issued, have been rescinded because of pressures of militant groups. I suggest that those are just as serious forms of censorship as the violent kinds of abuse which hit the headlines.
I should like to make two general points. First about the kinds of people the censors are trying to silence. In this perhaps I may answer the two noble Lords who have already spoken in this debate. Secondly, and fundamentally, about the seriousness of the attempting to prevent freedom of speech under the law on the campuses of our country.
First, it must be emphasised that the kinds of people who have been silenced or have been denied invitations to speak are not political extremists. In the largest measure they are not political extremists who will use the academic platform to break the law of the land. They are often government ministers. Your Lordships will remember the treatment meted out to David Waddington at Manchester University last year, or previously to David Hunt at Nottingham University when he was a junior energy minister. Others who have been denied platforms include those whose political positions find disfavour with the far left activists such as the courageous and emphatically non-racist Mr. Ray Honeyford. I could give many more examples but I shall not detain your Lordships with them. However, they demonstrate the manifest ineffectiveness of current provisions to protect freedom of speech, despite the much vaunted guidelines prepared and distributed by the CVCP and by the directors of polytechnics. In this connection, I find particularly worrying the recent statement made by some leading figures in the academic world; namely, Dr. Beishon, director of the Polytechnic of North London, who has attempted to justify censorship, even arguing that he would think it appropriate to examine the motives behind a proposed speaker's potential contribution. He told a recent conference:Anyone who espouses a view which would lead to a policy restricting the freedom of other people should not be granted the right of freedom of speech.In this context, he mentioned three Conservative M.Ps. He also said:If people are not coming to contribute to genuine academic debate and are using a platform for political motives there is no reason to accept them. We have a perfect right to say certain people should not be allowed on campus.This seems to he slightly at variance with what the noble Lord, Lord McIntosh, was sayng that everyone is committed to the principle of freedom of speech on campus.
822 I would suggest that such explicit support from a polytechnic director for the notorious no platform policy is deeply worrying.
I should like to conclude with a general point. It is impossible to overstate the seriousness of developments such as these. In a free society, the academy—under which I include universities, polytechnics and colleges—must be the ultimate repository of freedom of speech under the law. It is in academies that ideas and evidence must be put forward for critical discussion and evaluation and where issues of truth and falsehood, validity and invalidity, logicality and illogicality must be debated. This means that is imperative that all evidence be presented and that differing views be heard. Once self-appointed censors start to interfere and to deny platforms to speakers whom they assert will give offence we are on the road to the totalitarian censorship of Nazi Germany or the Soviet Union.
I have both read and heard the reservations expressed by some of the representatives of our academies concerning the proposed legislation. In reply to them I would emphasise that this clause in no way puts visiting speakers above the law or gives them licence to transgress the law by, for example, incitement to racial hatred. Nor does it open up the campuses to anyone who wishes, as it were, to walk in off the street. It applies only to genuine visiting speakers to the establishment and to members, students and employees.
As I draw to a conclusion let me remind your Lordships that some institutions have singularly failed to protect this fundamental freedom and some seem unwilling even to commit themselves to do so. Dr. Beishon's readiness to examine "motives" seems to me to indicate a particularly sinister dimension.
Therefore, in considering this amendment, please may we not forget the reality of the situation as it is now—the fact that freedom of speech is not assured on our campuses. University and polytechnic authorities find themselves unable to protect visiting speakers who are sometimes subject to physical abuse or to other forms of silencing, and sometimes those in authority have to resort to covert censorhip in order, they claim, to forestall violence. Given all those facts, it is imperative, if we wish to protect this fundamental freedom, which is essential to a free society, that we underpin it with the force of law. Would that this amendment were not necessary, but, given the circumstances, I hope that your Lordships will wholeheartedly support it. If it were to be defeated today it would encourage those who are willing to violate freedom of speech and it would be a tragic day for Britain as a free society.
§ Lord Somers
My Lords, I never thought that I should find myself differing from the noble Baroness, Lady Cox, on such matters, but on this occasion I feel that I must do so. Like the noble Baroness, I take the view that freedom of speech is precious and must be preserved. However, it must always be conditional, because otherwise would we have, for instance, a law of slander? There is a limit to the freedom of speech there as there must be in other areas.
There are many insidious movements today which are doing their best to infiltrate the minds, particularly 823 of the young. There should be some way of preventing them if they prove a danger to our national way of life. How one can do that remains to be seen. I do not believe that one person should have total authority to prevent their entry into universities, but there certainly should be some method of preventing them. To go back quite a long way, would we have allowed, for instance, Hitler, to come and address our universities just before the war? If we had done so, I think that it might have had a very bad effect.
As the noble Baroness has just said, freedom of speech is a wonderful thing, but like all wonderful things it must be controlled.
§ Viscount Caldecote
My Lords, I fully share the serious concern expressed by the noble Baroness, Lady Cox, but I am sorry to have to strike a discordant note from these Benches. We are all devoted to the cause of free speech, most of all in our universities and polytechnics. However, it is the proposed method of achieving it which greatly worries me, although I fully accept that the amendment stems from the highest motives and the best intentions.
First, I believe that legislation of this kind has no place in an education Bill. It was inserted as a result of a somewhat emotional reaction to very unfortunate, very damaging and very bad events that occurred not so long ago. However, it is concerned with law and order and it involves the role of the police and similar matters.
Secondly, many of the provisions of the amendment are unworkable and I fear that they will bring the law into disrepute. There is a duty to ensure free speech and that duty is spread very widely indeed. Anyone who has worked in a university, as I have done, knows well how very wide and disparate are the opinions and the types of people who work there. As I understand it, failure to carry out the provisions of the amendment will not be criminal, so who will sue whom in the civil courts and how will damages be assessed? How will attendance at conferences by various people be dealt with? How does prevention of free speech in universities differ from similar problems at other meetings—perhaps in village halls or other public places? Who will determine whether the code of practice in subsection (3) meets the requirements of subsection (1) or whether reasonably practicable steps have been taken to secure that the code of practice has been complied with, as required in subsection (4)? The list of questions requiring clarification is very long indeed.
Thirdly, I believe that there is a much more satisfactory alternative to legislation in the code of practice which has been drawn up by the Committee of Vice-Chancellors and Principals and which was issued in December 1985. Such a code would be far more effective: it could not be circumvented by clever lawyers; the organisers of meetings could be required to give assurances to abide by it; legal points on the definition of public and private meetings, of who is a visiting speaker, or whether the code of practice that has been drawn up by the university is adequate or not, could not be raised. The code of practice could be interpreted flexibly to meet all occasions and in the 824 spirit of maintaining the freedom of speech which we all believe is so important. That is what matters—not the letter of the law to be settled and argued in courts.
Therefore, I implore the Government even at this very late stage—and I know that there has been a great deal of discussion about it—to reconsider the wisdom of the amendment, preferably to remove it altogether, and give an opportunity for the code of practice drawn up by the Committee of Vice-Chancellors and Principals to be given a chance to operate. If it does not operate properly, if the vice-chancellors and principals of our universities and polytechnics cannot carry it out, cannot keep order and cannot provide free speech under that code of practice, then let the Government come back and propose a suitable amendment to the law. However, let us give a chance for self-regulation in our great universities and polytechnics, which should be the great bastions of free speech.
§ 5 p.m.
§ Lord Chalfont
My Lords, I have listened with mounting concern to some of the exchanges which have taken place so far. Is it really possible that people do not understand what is going on in vast areas of this country, especially in our centres of higher education? I wonder, were we not moved recently by the cries that came from four of the Eastern European countries, from people who were crying out to the rest of the world to bring them back some of their freedoms? If one had asked them, as I have asked many of them, what is the freedom that they most cherish and the absence of which they most regret, it would be the freedom of speech.
That is what is going on in some of our universities. People are being deprived, because they hold certain views, of the right to express those views in the open and in public. As has already been said, it reminds me of nothing more than the 1930s in Germany and what has gone on in the Soviet Union since 1917. It is a form of totalitarianism writ large. When people come and say, as someone has recently said in a letter to the press, "Oh, but if you do this the Moonies may come and preach in our chapel and Sinn Fein may come and hold seminars", I dare say that, like most Members of this House, I should regret that deeply, but it is a small price to pay for maintaining the freedom of speech in a parliamentary democracy.
There is nothing worse than the beginning of gagging people because of their political opinions. We have heard the no platform policy referred to this evening. No platform, no campus, is one of the phrases we have learnt to become used to in the barbarous language of our modern educational system. What it simply means is that a number of young people, alleged to run their student unions, have decided that there are certain views which may not be expressed at any cost in their universities, and the no platform policy deprives people of the right to express those views.
I should like to ask your Lordships to think for a moment which way that balance goes. How many times has the no platform policy been operated against anyone who was attacking a right-wing organisation, or a right-wing personality, and how many times have platforms been given to people who wanted, for reasons of their own, to attack left-wing targets and 825 left-wing organisations? If you examine the basis of the no platform policy you will find, as I have found from examining this in some detail, that the balance is very much one way.
You would have great difficulty in getting a platform in any university if you wanted to attack the Contras in Nicaragua, but no problem if you wanted to go the other way. Similarly in any kind of debate in which there is a clear distinction between the Left and the Right. I think you would have no difficulty whatsoever in detecting which way the no platform rule operates.
This appalling wedge of totalitarianism is being operated in areas where freedom of thought, freedom of inquiry, freedom of debate ought to be at its most precious—in our universities. That is where people first learn to think freely about issues and to, put the views on both sides of an argument and to arrive at some kind of intelligent conclusion. I wonder whether these brave young censors in our universities realise that if they get their way they are moving towards the kind of society in which the first casualty will be freedom of education. I wonder whether they really want that?
I shall not delay your Lordships any further. I feel deeply about this issue. It was once said that people who start by burning books end by burning people. Denying freedom of speech is a form of burning books. It is a form of denying to people the right to examine all the sides of an argument however much they may disagree with them.
We have heard tonight, and in the course of some fairly intensive lobbying that has gone on before this debate, that the vice-chancellors and the governing bodies of universities do not need to be told how to do these things. It seems to me self-evident that they do need to be told how to do these things. The evidence of recent months has been much too clear to enable us to accept any longer that self-imposed codes of practice are any good. If we are to prevent what I believe to be the thin end of a totalitarian wedge from entering our centres of higher education, what we need is not the power of persuasion by vice-chancellors, however that might be expressed and however forcefully it might be expressed: we need the force of law, and I shall vote for this amendment.
§ Lord Grimond
My Lords, I feel that those of us who passionately believe in free speech must make some protest on behalf of the universities against the sort of speech that we have just heard. It is totally untrue that either this country or the universities are in the state of Germany in the 1930s. It is a monstrous and useless exaggeration to pretend that they are. In point of fact the universities of this country today are in a highly creditable state. They are extremely well run by their governing bodies, they do a marvellous teaching job, and, so far as they are able within the customs of this country, they protect free speech.
I would put in a strong word on behalf of the vice-chancellors. It seems to me that the Government of this country lately have got into trouble in education because they have simply shown no respect for the universities. They have shown no respect for the people who run them. They are highly intelligent, able and liberal men. They may not be able to speak for themselves—although I suspect that they will—but 826 anyone who goes near a university must be deeply impressed by the standard of those who run them. It seems to me time that the Government said that, and stood up for the universities.
Of course we all deeply respect the noble Baroness, Lady Cox, and I was much moved and shocked by the quotations she read out from the principal of a polytechnic. But I would ask the Government how many university vice-chancellors do they believe are in any way opposed to free speech? Have they any evidence that any vice-chancellor in this country is really opposed to free speech?
I would secondly ask the Government, has any vice-chancellor said anything in favour of this clause? Do they think it would be helpful to them? Do they think it would be helpful to free speech? Do they think it would be helpful to the good running of the universities? They may well have such evidence, but so far it has not come my way. I ask them to take some notice of the people who are in charge of the universities.
Some years ago it was certainly true that there was an unpleasant atmosphere in some of the universities and almost a revolutionary notion. It has greatly improved over the last years, and do not let us spoil it. On the whole, visiting speakers are well received. On the whole members of the universities are entitled to say what they like. There are deplorable exceptions. Deplorable exceptions at Bristol, and so forth. But they are exceptions, and the question, as so rightly put by the last speaker from the Conservative Benches, is not whether free speech is a good or a bad thing but, does this amendment improve the chances of getting it? That is the point. I think the unanimous opinion of the universities is that it will not. It will lead to the sort of difficulties which have been pointed out on both sides of the House.
Let us be clear that the present method of legislation is to start by putting in some general bromide, such as, "We should all be virtuous". And we then think that people would be more virtuous because it is written into a statute. I assure your Lordships that they will not. Secondly, they will be given a detailed description of how they are going to be virtuous. The result of this method of legislation is that the bad boys take advantage of it and the good boys get into trouble. As the noble Lord, Lord McIntosh, said the sort of people who will take advantage of this clause are atheists who will demand to preach in Balliol Chapel, and the only person who will suffer from it is the Master of Balliol, who will be involved in litigation of all sorts. It is a serious business. It is not the good boys who are going to be protected by this, it is the bad boys who will take advantage of it.
I beseech the House if they must pass this clause—which no doubt they will—not to delude themselves that by passing it they are going to make everything in the garden rosy. They are not. The vice-chancellors have to carry on the difficult business of running a contentious organisation with difficult people in it, protecting free speech, and protecting all that universities stand for. What they have a right to expect is that the Government do not go on pretending that the universities need nursemaids to look after them, but give the universities the general support to which they are entitled.
827 Let me finish on one other matter. The Government are constantly lecturing the universities about being out of touch with business. It just shows that they are out of touch with the universities. The ivory tower exists in the Ministry of Education and not the universities. They are in the closest possible touch with business. They know all about freedom of speech. They know all about the difficulty of visiting speakers and protecting unpopular causes. It is for the Government to show that they have some respect for these institutions and not treat them as though they were aberrant children.
§ Lord Renton
My Lords, of course the vice-chancellors have a responsibility, but even since they formulated their guidelines we have had some serious cases in the universities of interruption both of teachers and of visiting speakers. The noble Lord, Lord Flowers, who asked us to rely upon the vice-chancellors' guidelines (to which my noble friend Lord Caldecote properly referred as a code of practice) pointed out that according to his view nothing in the Bill added to the vice-chancellors' guidelines. But surely by having statutory codes of practice—the vice-chancellors' guidelines do not have the authority of Parliament—we shall indeed be adding something and be strengthening the hands of the vice-chancellors.
The noble Lord, Lord Flowers, also said that we have to deal with only a small proportion of cases in this legislation. That is true of nearly all legislation that we have to enact. We are not acting very often for the generality of people. We are acting for the small minority of determined wrongdoers, trouble-makers whatever they may be, but small minorities. That, alas, is what legislation is mostly about.
If I may have the temerity to refer to this new clause, this particular legislation, I suggest that it is on the right lines. It properly states its objectives in general terms. It does not attempt to go in for a vast amount of hypothetical detail. Indeed, some of the criticisms we have heard from the noble Lord, Lord McIntosh of Haringey, by implication criticise it for not spelling out things even more than it does. But the clause has the further advantage that it enables flexibility to take place because we know that circumstances vary considerably in various universities, in the colleges of further education and so on. By having guidelines which will be formulated by each of the governing bodies to meet their own circumstances, then we are trusting those authorities in a much greater way than we would be doing if we fell into the temptation—which I think we have been invited to fall into—of doing something, as has been said, more positive.
I ask your Lordships to bear in mind also that the initiative for a provision of this kind started early last summer in your Lordships' House. We added a clause to the Bill. On further consideration and in their wisdom, after taking further advice, my noble friends in the Government asked another place to substitute our clause with another better and more flexible clause. That is what has been done. It was carried by a very large majority in another place.
Surely at this stage of this Session, on a matter on which the motive must surely be agreement between 828 us (because there is a mischief to be corrected) it would not be right for us to raise a constitutional conflict just now.
§ Lord McIntosh of Haringey
My Lords, there is no question of constitutional conflict. The noble Viscount the Leader of the House himself said that, since there had been no opportunity to consider this matter earlier on Third Reading, we would now have a full opportunity to consider and, if necessary, to amend the legislation proposed.
§ Lord Renton
My Lords, perhaps I should briefly answer the noble Lord. If we now vote this clause down it will have to go to another place. They will have to consider whether they agree or disagree with us. It may be that my knowledge of English is not as good as that of the noble Lord, but I call that a conflict.
§ 5.15 p.m.
§ Lord Briggs
My Lords, I feel that there is no doubt in this House about the ends for which this clause is intended, but, having listened to the arguments, there is a very serious doubt still in my own mind about the means. It wa said during the 1960s that the only thing vice-chancellors had in common was that they knew something about vice. One thing that they have had in common throughout the decades is some knowledge of the issues arising out of the question of free speech.
I was interested in the rather frightening words of the noble Baroness, Lady Cox, from one member of the academic profession, but in my own experience I have known of no vice-chancellor who did not believe in the virtues of free speech. We in universities are dedicated to free speech. We cannot organise new knowledge, we cannot transmit existing knowledge without free speech. I am utterly appalled when I read of any attempt to stop anybody from saying what he wishes to say in a lecture, or for that matter in a speech. However, if one looks at the situation inside universities, which I have known for a very long time, it is much more difficult to deal with these matters if you are on the spot than it is to talk about them in abstract terms.
When I was an undergraduate myself at the University of Cambridge I remember the two most tumultuous political meetings that I ever attended: meetings addressed in the first instance by Sir Oswald Mosley, and, secondly, by Winston Churchill. The first speech ended in utter chaos and Oswald Mosley was hooted out of Cambridge with fireworks and crowds from the Corn Exchange. It was a meeting which did not take place on college premises. It was held in the Corn Exchange in Cambridge. The speech by Sir Winston on conscription was a speech which made its way through by force of the personality of Sir Winston himself and he succeeded in having a very good hearing.
I have seen the disturbances in the 1960s and I have looked at universities since the 1960s. I feel that while all the cases that arise—and we have had many of them in recent weeks—are very serious, on the whole in this country we have had fewer problems in relation to free speech in the universities than we have had in most other West European countries or in the United States. We all want to preserve freedom of speech, but 829 when the noble Lord, Lord Chalfont, spoke of a wedge, I think of another wedge. It is a wedge driven by statutory legislation into what have been traditionally thought of as the responsibilities of universities.
In this country we desperately need intermediate institutions where a degree of responsibility can be shown by the people on the spot. They will work in universities through councils and other bodies so that there will always be no complete freedom of action on the part of the vice-chancellor. There will be a body of opinion brought to bear on his own judgment, but ultimately at the moment he is responsible. He is now being asked in terms of this clause to carry out a series of responsibilities which are extremely difficult to follow. First, there is the question of premises. I am not sure in my own college in Oxford what fully constitutes college premises. The second point I am not clear about is to what extent intruders who come in from outside really are my own responsibility. In many universities the real trouble arises not from undergraduates in the university, not even from a small minority, but from people who come in, choosing the university as an arena which will immediately capture the attention of the media and will be in the newspapers the following morning. There is no conceivable way, whatever legislation is passed, in which we will be able to stop people from coming into universities and using and turning university places into centres of action.
The third point about which I am worried is where the new clause says:Every individual and body of persons concerned in the government of any establishment … shall take such steps as are reasonably practicable"."Every individual"? In what university in the world since the beginning of time would every individual be pledged to that particular conception—in any university in the freest possible society or country?
We all believe in freedom of speech. I believe in it passionately, as strongly as the noble Lord, Lord Chalfont, or the noble Baroness, Lady Cox. But I believe that if this amendment were to be passed we should not get rid of incidents in universities. We might even magnify their difficulties. The real answer to these questions lies in creating a responsible body of opinion among the people associated with universities, polytechnics and other institutions, and also in ensuring that they follow their own guidelines about what they wish to do.
I have no problems at all about the first part of this clause. It is when you turn what is in fact a responsible obligation into a statutory duty that the real issues of difficulty begin to arise.
§ Lord Howie of Troon
My Lords, I speak as one of those university pro-chancellors of which the noble Lord, Lord Chalfont, has such a poor opinion. In my university, which is an obscure one—the City University in London—we have had a succession of notable speakers including, I am glad to say, the noble Lord, Lord Grimond, and not one hair on his noble head was injured on that occasion: nor has anything untoward happened to any others of our speakers.
I support strongly the pleas made by my noble friend Lord McIntosh and by the noble Lord, Lord 830 Flowers, first, in their defence of free speech, and secondly, in their critique of this amendment. I yield to no man in my defence of free speech; and to the young of our universities I would say that the measure of a man's support for free speech is the extent to which he allows it to his opponents or even, for that matter, to his enemies. I would not be as worried as my noble friend Lord McIntosh if Sinn Fein got a platform in Britain, although I would not expect to agree with a single word they said. I would not worry too much if an atheist were to speak in the chapel at Balliol, but I would hope that he did so by invitation. I would not he likely to hear him anyway.
I think we are facing a fairly simple problem here. There have been a number of untoward and even despicable outbursts in our universities in recent times, which none of us in any corner of this House would defend in any way whatsoever. But I think the Government's reaction has been one which we have found in our parliamentary experience over a number of years: that is, over-reaction to an event or a series of events which may be temporary or may be longer term for all we know.
Faced with that problem—which is a difficult one—the Government have rushed to pass a law of some kind which they hope will deal with the problem. First of all, the power in the amendment which they are proposing is put into the hands of the university authorities themselves, but they have not quite got the power all the time to apply the full rigour of that law in the way the Government might want. The Government might learn from their own experience of reacting to problems of this kind by passing a law. In the last six years or so, prompted by iniquities and deplorable behaviour on picket lines, we have passed a number of laws dealing with the behaviour of pickets. What has happened? We have had the miners' strike and we have Wapping going on. The laws are there on the statute book and they clearly define what pickets can or cannot do, but they are almost wholly ineffective.
The same kind of fate would be quite likely to apply to the law as amended by this amendment. I think the Government are reacting to an evil—and it is an evil—in an ineffective and inefficient way. As the noble Viscount, Lord Caldecote, said earlier, this is not a proper subject for an Education Bill. It is a proper subject for a public order Bill of some kind, because it relates to public order not only in universities but as a whole. The sensible procedure for the Government, even at this late date, and even at the risk (as the noble Lord, Lord Renton, fears) of provoking some kind of constitutional crisis—though I am sure a very small one—would be for them to withdraw the amendment now and reconsider the problem which they see in the context of public order as a whole.
§ Lord Chalfont
My Lords, before the noble Lord sits down, may I briefly set the record straight? I do not have a low opinion of the vice-chancellors of universities. For most of them I have a high opinion and great admiration, but that is totally irrelevant to the purpose of this clause.
§ Lord Annan
My Lords, after that encomium, I rise to my feet delighted! But I am bound to say that I take 831 a slightly more cynical view about this matter than has been shown in some of the high-minded speeches which have been made today. I agree with something the noble Lord, Lord Butterworth, said when we debated this matter in July. That is, that an amendment of this kind cannot deal with such a wide issue. Nevertheless I shall explain why I shall vote for this amendment, in contra-distinction to my ex-colleagues in the academic world.
First, I think that the amendment itself is quite carefully drafted and it contains some words, to which no one has yet drawn attention: that people are to take such steps "as are reasonably practicable". That phrase is very important and it appears in three subsections. I say that because—although I dare say the noble Baroness, Lady Cox, will despise me for revealing this story from my past—in the 1960s, shortly after Mr. Enoch Powell made his famous speech about "rivers of blood", he was invited by the Conservative Association at University College, London, to speak. I returned late in the evening to be told this was going to happen and that there was no question but that there would be a riot of momentous proportions.
I thought about this; and I asked the President of the Union and the leader of the Conservative Association to come and see me. I suggested that Mr. Powell might be invited to talk to his Conservative students at the Liverpool Street Station Hotel. And there a most successful meeting was held and there was no kind of commotion. Your Lordships may say that was an act of cowardice, but it seemed to me that I was taking such steps "as were reasonably practicable" to produce, on the one hand, freedom of speech and, at the same time, maintain law and order in the institution. I do not think this clause will stop that happening again.
Various points have been put forward and one of the things the noble Lord, Lord Flowers, said was that the Vice-Chancellor's Committee had done everything they could. They had sent out a warning to universities to say, "You must look at this situation: the Secretary of State has asked us to draw your attention to it." That was all they did. The committee has a large secretariat. Could they not have produced a code of practice and—much more importantly, as I shall come to later—draft disciplinary regulations which in the light of experience of the past 15 years—and the Committee of Vice-Chancellors know a great deal about this matter—could have been circulated to universities? Universities should have been asked, "Have you brought your procedures up to date? Are they in line with the advice that we are giving you?"
Again, the noble Viscount, Lord Caldecote, said: "Give the universities a chance". But they have been given a chance time and time again. I must refer to the situation in the University of Bristol. Here Professor Vincent was prevented from lecturing and about twenty students were brought up before the disciplinary body. I am informed by the Vice-Chancellor of Bristol that in the end eight of them faced the tribunal.
First, let me say that by the laws of natural justice every university has to have a disciplinary body, and a 832 body to which there can be an appeal from that body. Natural justice demands that when university students are up before disciplinary bodies, they must be informed of the nature of the offence with which they are charged, the time and place at which they have to appear and sufficient time must be given to them to prepare their defence. They have a right of appeal from the verdict, although I should not say that they would have a right to appeal from a fine which is a trivial penalty.
However, it is not part of natural justice that students should he defended by solicitors and barristers in front of disciplinary bodies. When Mr. Ian Botham appears before the MCC, does he have a barrister arguing his case? When a doctor appears before the General Medical Council, does he have a barrister arguing his case? I gather that they can and do, but I should be surprised if it is part of natural justice for lawyers to be employed in such defences. It would be perfectly proper to have an amicus curiae (i.e., someone from within the institution itself—either a senior or a junior member) to come and help the student in trouble; but even that is not part of natural justice.
What happened at Bristol was that these cases dragged on and that every conceivable procedural argument was used by the barristers defending students. Then the miracle occurred. Sentences were handed out. The students appealed to the appeal court. A professor of law was the chairman of that body. I dare say that for that professor of law the visions which had always been before him had come true. He saw himself as Lord Chief Justice of England; perhaps he saw himself sitting on the Woolsack, handing out justice according to the niceties of the law. And what did he find? He found that because two members of the original disciplinary body had not been present throughout the proceedings but had been substituted—although it was a perfectly properly constituted body—all the sentences were null and void and the whole proceedings fell to the ground.
That is the sort of thing that has been going on. Exactly the same sort of thing happened when I investigated the disturbances in Essex in 1974. There, again, the head of the appeal body took it into his mind that he could bring peace to the university if he suspended all sentences upon students who had done £30,000 worth of damage and had more or less immured the university from contact with the outside world and assaulted the vice-chancellor. It is these continuing disturbances which throw doubt on the willingness of universities to take this matter seriously.
The noble Lord, Lord Briggs, said that the solution lay in what I think he called "building up a responsible body of opinion". I am afraid I think that that is an opaque generalisation. I do not believe that building up responsible opinion is going to stop disturbances in universities. I do not think that anything is going to stop disturbances in universities. But I do believe that this amendment may at last force the universities and similar bodies to put their disciplinary proceedings in order.
At Oxford, at a similar time to that at which the £30,000 damage was done in Essex, students invaded.] 833 premises in the Indian Institute. They were told to get out and not do it again. They did it again and 13 of them were sent down for good. That is the type of disciplinary procedure which alone will solve this matter. That is why I believe that this amendment is a shot over the bows of those who run our institutions. It reminds me very much of what happened when Sir Thomas Beecham, before the war, got vexed with the ballet company for whom he was conducting. He conducted the dance of the little swans at double the normal pace and then said at the end of it, "That will make the beggers skip". I suspect that is what the Government have in mind by this amendment.
§ 5.30 p.m.
§ Baroness Lockwood
My Lords, this debate is not about freedom of speech in universities and institutes of higher education. In this House, as we are aware, all of us are committed to freedom of speech and the debate is about whether or not this clause is the best means of achieving freedom of speech.
I should like to say to the noble Lord, Lord Renton, that this is the first opportunity this House has had to debate this subject in detail. The clause that went to another place was not the clause from this House. It was a government clause and it went to another place on the understanding that it would come back to your Lordships' House for debate. It is that debate which is taking place today.
I support my noble friend Lord McIntosh, the noble Lord, Lord Flowers, the noble Viscount, Lord Caldecote, and others who have opposed this amendment. I do that on the basis of my experience as a member of the councils of two universities in Yorkshire, one of which has some problems. The noble Lord, Lord Annan, has drawn upon his experience. I think the experience of Bradford University is relevant to the debate this afternoon. It was named in another place as one of the universities which had led to the introduction of this clause. The problems that Bradford has experienced illustrate the problems that universities and vice-chancellors generally are having.
The two events in Bradford to which I wish to refer concern, first, a proposed visit by Harvey Proctor to the university. This was at a time when controversy was raging in the city about the case of Ray Honeyford, to which the noble Baroness, Lady Cox, has referred. The university authorities were conscious of the fact that a speaker on the subject of Ray Honeyford could be controversial and they contacted the city authorities and the police. The advice they received was that opinion in Bradford was very sensitive and very tense. It was generally agreed that a meeting of this kind would not help the situation there. Moreover, examinations were taking place in the university at the time and disruption would not have been to the benefit of the students.
In the light of all those circumstances, the vice-chancellor decided to cancel the meeting at that time because the time was not opportune. I happen to think that the vice-chancellor was right, but others criticised him. Others would have criticised him had the meeting taken place and had there been racial disturbances in the city. But surely this is the 834 responsibility of vice-chancellors. They must weigh up the evidence and make a judgment. Sometimes, as with the rest of us, their judgment may be at fault. Sometimes it will be the correct judgment. However, if vice-chancellors are not able to make judgments of this kind, then what is the purpose of having a responsible person in charge of a university?
Would the clause we are now considering have assisted the vice-chancellor of Bradford University at that time? I doubt it very much. Either he would not have been able to take that decision under subsection (2) of the clause or, if he had, he might have found himself in the courts with litigation on his hands. The noble Baroness, in her introduction, said that we must leave it to the courts to interpret this clause sensibly. We do not want our vice-chancellors spending their time in the courts defending their actions. I do not think that this particular clause would have helped the situation at all in those circumstances.
The second incident also involved a visiting MP, John Carlisle. Again, the university anticipated trouble and took what steps they regarded as appropriate to deal with the situation. They alerted the police, and the police were present at the meeting. In addition to the Conservative Union group who were responsible for the meeting, the Students' Union itself had stewards at the meeting.
Nevertheless, there was a disturbance but it was not caused by the students. The disturbance was caused by outsiders, by a group of youths who came into the meeting and caused the disturbance. Again I ask: What help would this clause be to the university in those circumstances? Nobody has subsequently been able to identify the youths who caused the disturbance and therefore no subsequent action has been able to be taken, nor would it be able to be taken under the clause as proposed.
The universities do not have the resources to establish a security force that would keep people like that out of the meetings and I doubt very much whether your Lordships would wish them to have such a security force. Therefore, we have this problem of outsiders, which has been referred to by the noble Lord, Lord Flowers, and by other noble Lords. It is one that would not be dealt with by this clause. Universities can deal with the problem of student indiscipline by their own statutes and ordinances.
Again, if I may refer to Bradford, they have a very strong ordinance which covers members of the university—that is, both staff and students—which enables the university to take disciplinary proceedings against any hindrance in academic fields, against any obstruction of the university's business being carried out, including the legitimate business of visitors, and against obstructing the university in its activities, again including visitors. Therefore if we have ordinances and statutes like that, they can protect the student body and enforce discipline on the students, but they cannot deal with this other problem that comes from outside. So I would say to your Lordships that we ought to consider very seriously what the Master of Balliol College asked in a recent article in the Independent:Is it appropriate that the duty of providing specially secure political platforms should be placed uniquely on institutes of education?
§ 5.45 p.m.
§ Lord Houghton of Sowerby
My Lords, I shall not detain the House for more than a few moments. We are enmeshed in the procedural and political difficulties that we have created for ourselves. Look, my Lords, at what we did. Earlier on it was this House who wished to have something put in the statute law to deal with this problem. The pressure on the Government was so strong that, while the amendment that was put down was not acceptable to them, they promised to bring forward after consideration an improved version to meet the wishes of the House. The Government's version was brought forward, but unfortunately the notice of it was so short before the Third Reading of the Bill that protests were made that we were asked to consider it at too short notice.
The only way of dealing with that situation was not to deal with the amendment at all, but for the Government to promise that after further consideration they would introduce a suitable clause in the Bill in another place. That is what happened. The other place has endorsed the amendment before the House by a very large majority indeed. If we reject this amendment now, we shall create confusion in the Parliament and convey serious misunderstanding to the public.
The public have not been mentioned this afternoon. The public's attitude towards universities, polytechnics and other institutes of higher education has come to the point where they regard much of what goes on there as part of the problem of violence and law and order, and think that it ought to be stopped. After all, when trade unions call strikes, and when there is violence in the exercise of free speech and free opportunity for action, that conveys to government and public the serious need for remedy, and I do not think that we can turn back from where we are now. It is a strange situation if it is more difficult to legislate for the establishment of free speech than it is to legislate to take it away.
We are prone to chip at free speech, and when it comes to flawed legislation show me something in the race relations legislation, show me something in the Public Order Bill that we have had in this House in the last few days, that cannot be flawed on definition, construction or the meaning of words. What is the incitement of racial hatred? Tell me what "hatred" is. One can go on indefinitely. In all the morals and humanities we are in difficulties over definition in our legislation.
But the main thrust of what people want done is in legislation, because they cannot see it being done by any other means. We shall be in serious difficulties. The public will wonder whether Parliament cannot make up its mind. It will wonder what difficulties have arisen. It will wonder: are they afraid of free speech after all? It is a curious feeling that I have this afternoon, that I am probably being a reactionary in insisting on free speech. It is not a party political matter with me. We have to nail free speech to the mast, take the risks that that entails and deal with them if they arise and become intolerable. That is where legislation on deprivation of free speech arises from.
836 When it is said that this may be unworkable, let us see. The noble Lord, Lord Annan, has surely given us the answer on the common sense construction of the legislation when we get it, and on the avoidance of the absurdities that lawyers may wish to invent in their attempt to undermine its effectiveness. So I am afraid that we shall be in serious trouble if we reject the amendment this afternoon. This is the best we have, it is better than nothing at all and it is far better than turning back in retreat.
§ Lord Swann
My Lords, I share the concern of those who have spoken in favour of this amendment. I also share the worry about the doubts that have been expressed by those who are against it. But I shall not go over the ground that many noble Lords have already covered ably and I want to look at the problem from rather a different point of view. I think I can claim rather a lot of experience of the problem, having been Vice-Chancellor of the University of Edinburgh throughout what was called the student revolution in the late '60s and early '70s. And, unlike members of the Government, and in common with only a very small handful of noble Lords I have had to deal with near riots and attempts to prevent visiting speakers from being heard on a scale far worse than anything we have now.
I remember all too well trying to quieten down mobs by shouting through loud hailers, on one occasion for two hours, because the chief constable could not muster enough policemen, and insisting on sharing lectures with visiting speakers when I thought that matters were going to get out of control, in order to try to set an example to the staff and students in my university. Very wearing it was. All this led. I am told, to my being regarded as a hard-liner in these matters and that, I suppose, might lead your Lordships to think that I should like to see the law brought in if only this amendment could he cleaned up and made workable.
On the contrary, I came to the conclusion long ago that as a matter of principle the law should not be brought into the delicate area of freedom of speech, and I want briefly to explain why. Were I a scholar in the humanities, I expect I should be tempted to give your Lordships a brief tutorial on the conclusions of great men from the past who thought greatly about the proper limits to freedom and the extent to which the law should rightly be used to define those limits, but I am afraid that I am only a scientist. I think, however, that your Lordships might like to reflect on a few passages from a very remarkable speech by a former Member of this House, made more than 70 years ago to the Authors' Club of London, allegedly impromptu and taken down in shorthand, since when so far as I know it has only been circulated more or less privately. It puts the case for keeping the law out of such areas far better than I could possibly do.
The speaker was John Fletcher Moulton, the first Baron Moulton. He was an exceptionally able mathematician, turned later to the law, became an MP, became a Lord of Appeal in Ordinary, chaired a remarkable number of Royal Commissions and such-like committees, many of them forerunners of bodies we know today, and lastly, at the age of 70, became Director-General of Explosive Supplies in the Ministry 837 of Munitions throughout the first world war. He died in 1921.
His speech was about that area of human behaviour which lies between what he called the domain of positive law and the domain of free choice. This area he called the third domain, of "Obedience to the Unenforceable":The domain which covers all cases of right doing where there is no one to make you do it but yourself. It might be thought that I wish to annex this third domain, and bring it under the rule of positive law. That is not the case. There are countless supporters of the movements to enlarge the sphere of positive law. In many countries there is a tendency to treat matters that are not regulated by positive law as being matters of absolute choice. But these movements are encroachments on the middle land, and to my mind the real greatness of a nation, its true civilisation, is measured by the extent of this land of obedience to the unenforceable. It measures the extent to which the nation trusts its citizens, and its existence and area testify to the way they behave in response to that trust".He continued in memorable words:Mere obedience to the law does not measure the greatness of a nation. Nor is the licence of behaviour which so often accompanies the absence of law, and which is miscalled liberty, a proof of greatness. The true test is the extent to which individuals can be trusted to obey self-imposed law".Surely those are sentiments that must come close to a Conservative Government's heart.
There is no substitute for reading Moulton's whole speech, which is full of flashes of insight. I want to quote just one, a chilling passage on the tendency of governments to legislate on matters where they would do better to hold back. He said:Between "can do" and "may do" ought to exist the whole realm which recognises the sway of duty, fairness, sympathy, taste, and all the other things that make life beautiful and society possible. It is this confusion between "can do" and "may do" which makes me fear at times lest in the future the worst tyrannies will be found in democraciesCan we, I wonder, glimpse just this at the present time, in the behaviour of some of our democratically elected local councils? I should not like to see that trend spreading any further.
Towards the end of his speech Lord Moulton started to summarise what I believe to be the core of his argument. He said:I … dread lest we should hurriedly let positive law come in and check the growth of self-reliance, check the growth of the sense of personal duty, and lead people to feel that if they obey the law, they have done all their duty".Finally, and most important of all, he went on to say:I am not afraid to trust people—my fear is that people will not see that trust is being reposed in them. Hence I have no wish that positive jaw should annex this intermediate country. On the contrary I dread it. Instead of the iron rule of law being thrown over it, I would rather see it well policed by its inhabitants. I am too well acquainted with the inadequacy of the formal language of statutes to prefer them to the living action of public and private sense of duty".Thus Lord Moulton, speaking more than 70 years ago. Do the Government really prefer throwing the iron rule of law over this present problem, rather than encouraging the universities—vice-chancellors, staff and students—to solve it for themselves, as they did 15 or so years ago in the later stages of the student revolution? And which course do they really think bodes best for the nation's health in the future? I can only hope, for the good of our society, that when we come to vote on this amendment the "Not-Contents" will have it.
§ Lord Adrian
My Lords, before I speak on this amendment—and I am conscious that we have devoted a long time to it—I have to declare an interest. I am one of those individuals concerned with the government of a university, and therefore very much affected. Indeed I am one of those whom the noble Lord, Lord Annan, wants to make skip. My present position—not this particular one but my position in Cambridge—makes me feel as if I am skipping most of the time.
Perhaps I may say at once that, as all of us are, I am committed to freedom of speech and I do not have any difficulty whatever with the intention of this amendment. I, too, am shocked by recent events and I deplore them, but I do not think as many have said already that this amendment will do very much to meet our difficulties.
Cambridge University already has in its disciplinary code, which is subscribed to by all members of the university, senior and junior alike—a rule which states:No member of the university shall intentionally or recklessly impede freedom of speech or lawful assembly within the precincts of the university".I believe that this rule in a substantially more succinct form than this amendment actually protects freedom of speech much more effectively than will these present proposals. I am wholly with the noble Lord, Lord Flowers, when I say that this amendment will not help us in Cambridge.
The grim picture painted by the proponents of the amendment is certainly not part of my experience. Our rule is not ignored by the university. In a recent incident where we had cause to believe that interference with an invited speaker was intended, the proctor and the university constables, whom some of your Lordships will remember as bulldogs, with police co-operation and help before the meeting, removed some of the students and others from the meeting place. They had chained themselves to the furniture and they had to be cut free. They were taken to the police station where they were detained for several hours until they had been identified.
Prosecution was seriously considered because they had broken into the building, but we were advised by the police that in the circumstances this conviction of individuals would be difficult to obtain. The colleges of the involved students were informed and a clear warning given to each student that further incidents would involve either prosecution or a charge before the university court of discipline. The meeting took place as advertised without incident and, of course, without publicity. I have been informed, I hope unreliably, that the speaker was not a little disappointed. Perhaps we were lucky in this case, but it shows, I think, that sometimes we succeed, that our intention is clearly to support freedom of speech, that we have the will and the means to do so and that we already work in close collaboration with the police. I hope therefore that what I say further on the amendment will not be dismissed by the moral right as wet or soft or as remote and ineffectual.
I have sought the opinions of lawyers in Cambridge on the drafting and the meaning of the amendment. Two general views prevail: either that it is so badly drafted that universities have nothing to fear; or that it 839 is so badly drafted that there is no knowing exactly what it means and that universities have good grounds for caution. I can only conclude that in legal terms this amendment is not well considered. When is someone a visiting speaker? Indeed, how is a visiting speaker to be identified? Must he be invited by a member of the university; or is it anyone who visits a university seeking to speak?
These points have been raised already. If half-a-dozen undergraduates invite someone to speak to them in their college rooms, is the vice-chancellor responsible for ensuring that speaker's freedom of speech within the law, and in breach of his duty if that speaker is prevented from so doing? At the moment, the vice-chancellor does not even know about many such meetings. Must he now consider imposing a mechanism by which he does?
It may be said that since the intention of the amendment is clear, these are just academic quibbles. I ask your Lordships to recall the pleasure of teasing college and university authorities and to recall that we are dealing with intelligent young people who will actually enjoy the game of devising conundrums of this kind. The second subsection, which refers to not denying any premises to a visiting speaker on the ground of his beliefs, will be a rich source of fun. We may laugh at the prospect of Moonies in King's Chapel, the Animal Liberation Front in the physiology department and Flat Earthers in the geography department, but hard-pressed people in universities will have to deal with students probing in this way. If nothing else, we shall waste a great deal of time and effort which would be better used on more serioius matters.
I repeat that I do not dissent from the overt intentions of this amendment, but I believe that as a consequence of passing it universities and vice-chancellors will be forced to take actions which will exacerbate present confrontations. If Parliament chooses to stress the overriding importance of free speech by forcing vice-chancellors to rigid and codified responses there is, I believe, a real danger of more violence. The young, or some of them, often enjoy and indeed seek a fight. The deployment, for example, of the rugger club to preserve good order would in my day have been seen as an invitation to a scrap. None of us wants to see the mindless hooliganism of the soccer field in our universities and I for one will do my utmost to prevent it.
I am fully aware, however, that if it does develop vice-chancellors will be blamed for it. If it does, we shall of course deserve some of the blame; but I believe that the supporters of this amendment, however well-intentioned, will carry the lion's share of the blame. I believe we are in danger of making fools of ourselves over this tendentious amendment. Vice-chancellors will be at even greater risk than before of being made fools of if they have Parliament and the courts breathing down their backs and demanding fierce action; and of course a flock of visiting politicians set on testing our resolve!
Parliament runs the same risk by passing vague and ill-considered legislation with unforeseen consequences. After listening to some noble Lords I 840 have to say that I am inclined to wonder whether the temptation of making fools of vice-chancellors has made them blind to the dangers of making fools of all of us and of the law. I shall vote against this amendment if the matter is pressed to a Division.
§ 6 p.m.
The Earl of Halsbury
My Lords, I shall try to be brief. There is one vice-chancellor to whom I am particularly close, and that is the vice-chancellor of the university of which I am the chancellor. I asked him about this amendment. He said that it plays into the hands of those who seek publicity. My noble friend Lord Briggs dealt with that so I shall not dwell on it.
The amendment removes the power of vice-chancellors to prevent provocative invitations. It is virtually impossible to identify culprits on these occasions; and that was dealt with by the noble Baroness. Lady Lockwood. If identified, they cannot be apprehended without calling in the police, and the universities have no funds to pay for that. The vice-chancellors' document, which the noble Baroness presented, is a very good document, so I turn to that. The duty, they say, is spread across an impossibly broad front. The term "visiting speakers" is broad and ill-defined. The burden of proof as regards lawfulness is not identified with respect to the person on whom it rests.
We have had three articles in newspapers from distinguished academics, two of whom have been quoted this afternoon. One is Patrick Neill, the vice-chancellor of Oxford. The third is John Griffith, emeritus professor of public law at the London School of Economics and chancellor of the University of Manchester. In a recent article he ended by saying:But for the Government to seek to codify and define in legally enforceable terms so ambiguous a concept as freedom of speech within the law is more likely to impede than to achieve the desired end.We must ask ourselves why the Committee of Vice-Chancellors and Principals is universally against this amendment. It is going to make their job of safeguarding free speech more difficult and not less difficult. Therefore we should look at it on the old principle, "Above all things, no zeal." We must not be so zealous on free speech that we do the wrong things to defend it. I thank your Lordships for allowing me that brief intervention.
§ Baroness Young
My Lords, as I expected, we have had a very important debate. I should like to begin my remarks by addressing the noble Lord, Lord Grimond, on his intervention. He implied—and it has been implied by a number of the vice-chancellors or former vice-chancellors who have spoken today—that somehow, by supporting this amendment, we are being anti the universities and, in particular, anti the vice-chancellors. Perhaps I may make absolutely plain, because I think everyone has produced their academic credentials, that I do not claim to be as academic as many who have spoken; but I am after all the daughter of a don and I married one. I have lived in Oxford all my life and I therefore think that I know just a little about universities myself.
I have listened to the very eloquent and sincere speeches that have been made by many speakers who 841 have had to deal with a lot of difficult situations. I should like to say that we in government too are faced with difficult situations and have difficult decisions to take. This amendment is in no way an attempt not to acknowledge the very good work that is done in our universities, which are so highly regarded throughout the world.
The second point I should like to make concerns why we have this amendment before us. It was of course tabled in your Lordships' House when we debated this Bill on Report and at Third Reading. But that is not the only reason. I believe that it was tabled because, sadly, our Ministers' attention had been drawn to a series of incidents which have occurred over the past two years involving the disruption or suspension of free speech in institutions of higher learning. Indeed, my honourable friend Mr. Walden, in answering a parliamentary Question on 25th June this year, listed 14 such incidents in the first half of 1986. Until May of this year we as a government had resisted calls for legislation on precisely the grounds that have been enumerated today; that is, that the institutions should be expected to resolve those problems themselves.
It gives me no pleasure at all, nor do I think it gives any of my noble friends pleasure, to feel that those problems have not been solved. Indeed, almost everyone who has said we ought not to have this amendment has quoted difficulties in the universities. They have given long and involved explanations as to why they have not been able satisfactorily to deal with them. The truth of the matter is that there have been these incidents. We have all been deeply shocked by the kind of cases raised by my noble friend Lady Cox—the case of Professor John Vincent; the case of the lecturer at Ruskin College; the invitations to speakers that are rescinded; the pressures from militant groups—and the points made by the noble Lord, Lord Chalfont, quite apart from the points made by my noble friend Lord Renton. Therefore there is a reason why we made those decisions.
As I said in introducing this amendment, we do not regard it as a panacea, but it will do what I think the noble Lord, Lord Annan, quite rightly said. He said that it will oblige people to look and look again very hard at what they do to see whether they can meet the principle which every single speaker in this debate has agreed ought to be met; namely, the principle of freedom of speech. I am sure that we all listened with enormous interest to what the noble Lord, Lord Annan, had to say from his experience, and also to what the noble Lord, Lord Houghton, said. If I may say so, that once again was the voice of reality. He brought in, and brought to our attention, what the outside world thinks about this situation and he said it very well indeed.
Three specific points have been raised by almost everyone who has spoken, and I shall try to answer them. They are criticisms which have come from the letter of the Committee of Vice-Chancellors. The first criticism—given again by the noble Earl, Lord Halsbury—is that the clause spreads the duty to protect freedom of speech across far too broad a front. It takes in a very large number of individuals. But this provision is deliberate; it underlies the general principle that everyone involved in the life of an 842 institution of higher education should share the duty. It can be left to the code of practice required under the clause to delineate where particular responsibilities will lie within each institution.
However, I stress the importance of the requirement that the steps taken to fulfil the duty imposed by the clause should be such as are "reasonably practicable", and reference to what is reasonably practicable appears three times in the clause. There have been a number of suggestions in recent weeks, advanced in the press and in correspondence, and indeed in your Lordships' House today, about situations in which the clause may be expected to apply. I believe that those were dealt with for the most part by my honourable friend the Parliamentary Under-Secretary of State in another place and I shall not reiterate all that he had to say.
I shall, however, repeat two important points, because this brings me to criticism No. 2, which is the possible interpretation of the term "visiting speaker" which is used in the clause we are considering today. The clause, which was withdrawn by the Government in June, referred to "a person duly invited"—that is the point that was made by the noble Lord, Lord McIntosh, when he spoke. But the Government concluded that this concept raised more questions than it answered and posed the risk of conflict with one of the two fundamental purposes of this legislation; namely, to outlaw no platform policies in higher education—and that is the point made by the noble Lord, Lord Chalfont.
Subsections (1) and (2) of the clause read together are therefore intended to secure freedom of speech for members of the institution and those whom they invite to speak on the premises and to ensure that no interest group within the institution can be prevented, on the grounds specified, from inviting a speaker. The Government do not believe that the courts would be likely to interpret the term "visiting speaker" as meaning any person who elects to turn up unsolicited, expressing a wish to speak on the premises of an institution. A visiting speaker will be someone who has a justifiable claim to be on the premises, and that claim can be tested against the provisions of the institution's code of practice.
I come to the third criticism, which concerns the premises that ought to be made available on a particular occasion. The duty laid on those concerned is to take such steps as are reasonably practicable to ensure that freedom of speech is secured. I repeat the assurance given by my honourable friend the Parliamentary Under-Secretary that the clause is not intended to give anyone the right to demand access to a particular part of an institution. All institutions will have rooms which are commonly used by visiting speakers. The clause could be expected to imply a right to the use of such rooms when available, but that does not mean that if all such rooms have been booked on a given date a visiting speaker or student society could demand the use, for example, of the senior common room or the library of the college chapel. They might have to look for another date when accommodation customarily used for visiting speakers was free.
The clause does not lay upon institutional authorities the responsibility for ensuring that a visiting speaker observes the law. He must be afforded 843 the opportunity to speak within the law—that is the point made, I think, by the noble Lord, Lord Somers—but it is his responsibility to observe the law as it bears upon the expression of opinion in public and it is he who is vulnerable to prosecution if he fails to do so.
I shall now try to answer a number of specific points. My noble friend Lord Caldecote asked: who will decide what the clause means? The answer is that in the last resort it is the courts, but the whole thrust of the clause is on establishments of higher education putting their own houses in order. Provided that they come out with a sensible code of practice and take reasonable steps to enforce it, they will have nothing to fear.
The noble Baroness, Lady Lockwood, raised two particular cases. I say to her that the vice-chancellor can still make a judgment where he fears that disturbances will result if the meeting takes place. That is something which can be provided for in the code of practice for the establishments concerned. He must take such steps as are reasonably practicable; he does not have to be infallible.
In listening to this debate I have been very struck by the observations of all those who have spoken against the amendment. I am thinking of the noble Lords, Lord Flowers, Lord Briggs and Lord Swann, who have said, "Yes, we want freedom of speech. We do not think that this clause will achieve it". Actually, they have not put up any alternative. In effect, what they are saying to us is, "Carry on as now". Nor indeed, if I may say so to them, have they made suggestions since this matter was raised in the summer when surely they had opportunities to do so. They have had consultations. They could have looked again at the kind of points which the noble Lord, Lord Annan, suggested and which I am sure other noble Lords can think of from their own practical experience.
Indeed, if I may say so, I felt that the noble Lord, Lord Briggs, was being less than fair to the Government when he gave as his suggestion that we must wait—I forget the exact form of words he used—until we have the support of public opinion. That is really waiting for a very long time. The Government have the support of public opinion to enforce freedom of speech in higher education premises. I am quite certain that that is what people want.
What we are talking about when we come to legislation and to Parliament is something that actually will work. It is very easy to make a general statement. At the end of the day it requires the knowledge, the courage and the right framework to ensure that is is possible for it to work. It simply does not take place in a vacuum. That is one thing that is quite clear.
One could say a great deal more but the hour is late. I hope that we shall agree with the Commons in this amendment. It is something that all of us believe to be right in principle. There has been no argument against that. If we do not support it, it means that we accept that everything is all right and, given the evidence of what is going on that sadly and regrettably we have had, we know perfectly well that we should not be 844 doing our duty if we left the matter as it is. It would be perfectly clear, as the noble Lord, Lord Houghton, made plain in his very effective intervention, that if we did not pass this amendment today we would send the wrong signal everywhere. We would not send the right signal. We have an opportunity today to do something that we all believe in principle is right. I ask my noble friends and your Lordships to support this amendment that we have received from another place.
§ 6.19 p.m.
§ On Question, Whether this House do agree with the Commons in the said amendment (No. 82)?
§ Their Lordships divided; Contents, 129; Not-Contents, 78.845
|DIVISION NO. 1|
|Aldington, L.||Hesketh, L.|
|Alexander of Tunis, E.||Hives, L.|
|Allenby of Megiddo, V.||Holderness, L.|
|Ampthill, L.||Home of the Hirsel, L.|
|Annan, L.||Hooper, B.|
|Ashbourne, L.||Houghton of Sowerby, L.|
|Auckland, L.||Kimball, L.|
|Barber, L.||Kinnoull, E.|
|Beaverbrook, L.||Knollys, V.|
|Belhaven and Stenton, L.||Lane-Fox, B.|
|Belstead, L.||Lansdowne, M.|
|Bessborough, E.||Lauderdale, E.|
|Blyth, L.||Layton, L.|
|Boyd-Carpenter, L.||Lindsey and Abingdon, E.|
|Brabazon of Tara, L.||Long, V.|
|Brightman, L.||Lucas of Chilworth, L.|
|Brocket, L.||McAlpine of Moffat, L.|
|Brougham and Vaux, L.||Macleod of Borve, B.|
|Broxbourne, L.||Manton, L.|
|Butterworth, L.||Margadale, L.|
|Cameron of Lochbroom, L.||Massereene and Ferrard, V.|
|Campbell of Alloway, L.||Merrivale, L.|
|Carnegy of Lour, B.||Mersey, V.|
|Carnock, L.||Milverton, L.|
|Cathcart, E.||Molson, L.|
|Chalfont, L.||Monson, L.|
|Charteris of Amisfield, L.||Morris, L.|
|Coleraine, L.||Mottistone, L.|
|Colville of Culross, V.||Munster, E.|
|Colwyn, L.||Murton of Lindisfarne, L.|
|Cork and Orrery, E.||Napier and Ettrick, L.|
|Cottesloe, L.||Newall, L.|
|Cox, B.||Nugent of Guildford, L.|
|Craigavon, V.||Onslow, E.|
|Croft, L.||Orr-Ewing, L.|
|Davidson, V. [Teller.]||Pender, L.|
|De La Warr, E.||Perth, E.|
|Denham, L. [Teller.]||Peyton of Yeovil, L.|
|Dilhorne, V.||Poltimore, L.|
|Dormer, L.||Portland, D.|
|Eccles, V.||Reay, L.|
|Eden of Winton, L.||Renton, L.|
|Elliot of Harwood, B.||Renwick, L.|
|Elton, L.||Rodney, L.|
|Faithfull, B.||Russell of Liverpool, L.|
|Ferrier, L.||Saint Oswald, L.|
|Forte, L.||Sanderson of Bowden, L.|
|Fortescue, E.||Sandford, L.|
|Fraser of Kilmorack, L.||Savile, L|
|Gibson, L.||Selkirk, E.|
|Gisborough, L.||Shannon, E.|
|Glanusk, L.||Shaughnessy, L.|
|Glenarthur, L.||Skelmersdale, L.|
|Gray of Contin, L.||Somers, L.|
|Hailsham of Saint Marylebone, L.||Stodart of Leaston, L.|
|Hardinge of Penshurst, L.||Swansea, L.|
|Henderson of Brompton, L.||Teynham, L.|
|Thorneycroft, L.||Vickers, B.|
|Tonypandy, V.||Vivian, L.|
|Trefgarne, L.||Westbury, L.|
|Trenchard, V.||Whitelaw, V.|
|Trumpington, B.||Wolfson, L.|
|Vaux of Harrowden, L.||Young, B.|
|Vestey, L.||Young of Graffham, L.|
|Adrian, L.||Lloyd of Hampstead, L.|
|Airedale, L.||Lloyd of Kilgerran, L.|
|Allen of Abbeydale, L.||Lockwood, B.|
|Amherst, E.||Longford, E.|
|Ardwick, L.||Lovell-Davis, L.|
|Attlee, E.||McCarthy, L.|
|Avebury, L.||McIntosh of Haringey, L.|
|Alyestone, L.||McNair, L.|
|Barnett, L.||Mais, L.|
|Bernstein, L.||Morton of Shuna, L.|
|Birk, B.||Mulley, L.|
|Bonham-Carter, L.||Oram, L.|
|Bottomley, L.||Pitt of Hampstead, L.|
|Briggs, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Carmichael of Kelvingrove||Ritchie of Dundee, L.|
|Cledwyn of Penrhos, L.||Rochester, L.|
|David, B.||Sainsbury, L.|
|Dean of Beswick, L.||Seear, B.|
|Diamond, L.||Shackleton, L.|
|Elwyn-Jones, L.||Sherfield, L.|
|Ely, Bp.||Silkin of Dulwich, L.|
|Ewart-Biggs, B.||Stedman, B. [Teller.]|
|Falkender, B.||Stewart of Fulham, L.|
|Fitt, L.||Stoddart of Swindon, L.|
|Flowers, L.||Swann, L.|
|Gallacher, L.||Taylor of Blackburn, L.|
|Graham of Edmonton, L.||Thurso, V.|
|Grimond, L.||Tordoff, L.|
|Halsbury, E.||Turner of Camden, B.|
|Howie of Troon, L.||Underhill, L.|
|Hylton-Foster, B.||Wallace of Coslany, L.|
|Irving of Dartford, L.||Wells-Pestell, L.|
|Jacques, L.||Whaddon, L.|
|Jeger, B.||White, B.|
|John-Mackie, L.||Wigoder, L.|
|Kilbracken, L.||Wilberforce, L.|
|Lawrence, L.||Williams of Elvel, L.|
|Listowel, E.||Winstanley, L.|
|Llewelyn-Davies of Hastoe, B.|
§ Resolved in the affirmative, and amendment agreed to accordingly.