All 12 contributions to the Higher Education (Freedom of Speech) Act 2023 (Ministerial Extracts Only)

Read Full Bill Debate Texts

Mon 12th Jul 2021
Mon 25th Apr 2022
Higher Education (Freedom of Speech) Bill (Carry-over)
Commons Chamber

Carry-over motionCarry-over Motion & Carry-over motion & Carry-over motion
Mon 13th Jun 2022
Tue 28th Jun 2022
Mon 14th Nov 2022
Tue 7th Feb 2023
Tue 21st Mar 2023
Higher Education (Freedom of Speech) Bill
Lords Chamber

Consideration of Commons amendments
Tue 2nd May 2023

Higher Education (Freedom of Speech) Bill

(Limited Text - Ministerial Extracts only)

Read Full debate
2nd reading
Monday 12th July 2021

(3 years, 4 months ago)

Commons Chamber
Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Watch Debate

This text is a record of ministerial contributions to a debate held as part of the Higher Education (Freedom of Speech) Act 2023 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Gavin Williamson Portrait The Secretary of State for Education (Gavin Williamson)
- View Speech - Hansard - - - Excerpts

I beg to move, That the Bill be now read a Second time.

I wonder how many of us here ever pause to reflect on how very fortunate we are to be able to do what we are doing right now—discussing freely a subject that many of us will feel passionate about. I suspect that most of us accept without pause that this is what democracy is all about. In short, we take freedom of speech and open debate for granted. Nothing that is precious in life should ever be taken for granted.

The privileges that we are enjoying today and that underpin any successful democratic society are essential and fundamental to a free and liberal society. Genuine academic freedom has long been a cornerstone of our world-leading universities. Their mission to stretch the boundaries of human learning, knowledge and wisdom was only possible because they were free to challenge the views of the time. Without their courage and without the bravery of those who defended their right to speak out, the world would be a much darker place today. Those challenges—those dissenting voices—have not always met with approval or agreement at the time. Some paid dearly for their intellectual independence. Take those trailblazers who argued for gay rights or women’s suffrage, or Charles Darwin, whose theory of evolution was considered blasphemous and deeply offensive by many but which we now accept as simple truth.

One reason why students from all over the world flock to our universities is they know—or expect—that they will not only get a first-class education but hear a broad range of views and opinions. Academics, whom our outstanding universities similarly attract from a global talent pool, expect to be able freely and fiercely to seek out the truth. What they do not expect and should not tolerate is being prevented from hearing those views or even being silenced themselves. Freedom of speech is a fundamental right in any civilised country but especially for students and faculty in higher education, which has always been a crucible for new ideas and ways of looking at the world. Staff and students should be free to discuss, debate and debunk other views.

Fear of censure is deeply saddening and has a chilling effect and spread on campuses. There continue to be too many reported instances where students or staff have been silenced or threatened with a loss of privileges or even dismissal for airing views or opinions that others disagree with. I have previously spoken about how that growing intolerance cannot be allowed to take root and I made it clear that if universities would not protect free speech, the Government would.

I turn to the reasoned amendment, which Mr Speaker has selected. The Government have been clear that the Bill protects lawful speech only. Unlawful speech on campuses will not be tolerated. To be clear, nothing in the Bill encourages higher education providers or students unions to encourage baseless or harmful claims or bad science on campus. We should be proud of our life-saving covid-19 vaccine roll-out, and we are pleased to see that more than half of 18 to 24-year-olds have already received their first dose.

Gavin Williamson Portrait Gavin Williamson
- View Speech - Hansard - - - Excerpts

I give way to the hon. Gentleman.

Lord Beamish Portrait Mr Jones
- View Speech - Hansard - - - Excerpts

It is the right hon. Gentleman. I agree totally about freedom of speech, which is one of the best things about this country and one that I am proud of, but what data is the Secretary of State using? If he looks at the Office for Students’ data for 2017-18, he will see that the instances he referred to amount to 0.009%. In an entire year, there were 17 cases among more than 500 academic institutions. What data is he basing his claims on?

Gavin Williamson Portrait Gavin Williamson
- View Speech - Hansard - - - Excerpts

I apologise for causing such offence to the right hon. Gentleman by referring to him as “the hon. Gentleman”. It was not right to ignore the fitting status that he holds in this House. I am sure he will not take too much offence by that. In terms of what we are tackling, we are talking about principles and the need for people to feel able to speak freely and challenge ideas. One of the great challenges we face on campuses up and down the country is that so many people are concerned they cannot speak out and give their views because they may be censured by those academic institutions.

David Davis Portrait Mr David Davis (Haltemprice and Howden) (Con)
- Hansard - - - Excerpts

In response to the point made by the right hon. Member for North Durham (Mr Jones), had Darwin been suppressed, that would have affected 0.0001% of debates, but it would have changed the course of history.

Gavin Williamson Portrait Gavin Williamson
- View Speech - Hansard - - - Excerpts

My right hon. Friend is absolutely right. So much of the legislation that goes through this place is the nuts and bolts for things that the Government must do to ensure good government and the delivery of all the things that we wish to see. However, we must not be blind to the fact that this place is also about principle, and the principle of free speech needs to be defended. There are unfortunately too many instances where people feel as if they cannot speak as freely as they wish.

Lilian Greenwood Portrait Lilian Greenwood (Nottingham South) (Lab)
- Hansard - - - Excerpts

Does the Secretary of State believe in evidence-based policy making? If so, can he cite the evidence for the problem that he is seeking to address? It appears that he is manufacturing a problem in order to have today’s debate.

--- Later in debate ---
Gavin Williamson Portrait Gavin Williamson
- View Speech - Hansard - - - Excerpts

We are talking about principles. We are talking about the fact that what we want to do is give people the opportunity to have that freedom. Do you know what was so saddening, Madam Deputy Speaker? When we first announced the intention that we would take this action if it was necessary—

Lilian Greenwood Portrait Lilian Greenwood
- View Speech - Hansard - - - Excerpts

If it was necessary. Why is it necessary?

Gavin Williamson Portrait Gavin Williamson
- View Speech - Hansard - - - Excerpts

What we hoped we would see is universities across the country taking further action, but what was so saddening was that so many people contacted me directly to express their concerns about being able to speak freely on campus at the universities where they worked. They were not able to put down their name and address, because they were concerned about the repercussions.

My right hon. Friend the Member for Haltemprice and Howden (Mr Davis) rightly said that it would be a tragedy if Darwin had not felt that he had the freedom and ability to challenge established thinking. We have to remember that there are Darwins out there who will be challenging the consensus, and we always need to ensure that all our great institutions deliver the freedoms that we expect them to deliver. We are a free and democratic society, and we should never be in a position where we are not doing everything we can to deliver freedom of speech. Does it not seem odd—in Parliament, of all places, where freedom of speech is there to be protected, relished and enjoyed—that the Labour party is not necessarily challenging and trying to amend the Bill, but wants to actively vote it down? It seems perverse that the Labour party is not supporting the principles of freedom of speech and is not doing everything we can to ensure that students and academics have as much freedom as possible to explore ideas.

As we look at how we protect free speech, we should all be appalled that a report by King’s College London only two years ago found that a quarter of students believed that violence was an acceptable response to inflammatory speech. The same report showed that a similar proportion of students were beginning to keep their beliefs and opinions to themselves because they were too scared to disagree with their peers.

Jess Phillips Portrait Jess Phillips (Birmingham, Yardley) (Lab)
- Hansard - - - Excerpts

Will the Secretary of State give way?

Gavin Williamson Portrait Gavin Williamson
- View Speech - Hansard - - - Excerpts

If I could just make a little progress, I will give way to the hon. Lady.

I am sure the whole House would agree that this intolerance is simply intolerable. Recent research by Policy Exchange revealed that 32% of those who identified as fairly right or right have refrained from airing views in teaching and research, with 15% of those identifying as centre or left also self-censoring. This is both unwise and unhealthy. Our universities must not become spaces where ideas are debated within a narrow consensus, with those who challenge majority views subject to censorship. Last year, I warned vice-chancellors that this situation could not and would not be allowed to continue. Although some have taken action, we cannot sit by while others do not. Our students and faculty quite simply deserve better.

Jess Phillips Portrait Jess Phillips
- View Speech - Hansard - - - Excerpts

As the Secretary of State talks about people being scared on campus and what he has asked vice-chancellors to do, I wonder whether he has the data in front of him for sexual harassment and sexual violence cases, which are rife on our university campuses. On the deep principles that he holds, what exactly is he doing about that, and when can I expect a Bill on that? That is surely a principled priority that the Government would want to take.

Gavin Williamson Portrait Gavin Williamson
- View Speech - Hansard - - - Excerpts

It absolutely is. I am sure the hon. Lady was about to come on to the amazing work that the Office for Students has commissioned to ensure that all universities take the action required, including looking at whether that is a condition of registration for universities, which, as she will understand, is absolutely fundamental for universities to be able to operate.

The Bill will protect lawful freedom of speech and academic freedom on campus. We are strengthening the legal duties that exist and ensuring that robust action, including imposing fines, will be taken if they are breached. The central core of the Bill is clause 1, which amends the Higher Education and Research Act 2017 to extend the duties of higher education providers relating to freedom of speech and academic freedom. That will ensure that those freedoms are protected and promoted within higher education in England.

As we actively protect students from racism, antisemitism and other forms of discrimination, higher education providers will have to take responsibility and reasonably practicable steps to secure lawful freedom of speech for their staff, members, students and visiting speakers. That includes a duty to secure the academic freedom of academic staff. It will mean a change in ethos as well as culture. Providers will be under a duty to promote those fundamental values, as well as to maintain a code of practice setting out how students and staff should act so as to ensure compliance with that duty.

Freedom of speech does not begin and end with providers. As a matter of principle, every student at every university in every corner of the country should have the same freedom and the same rights. Students unions must not be allowed to silence or intimidate other students within a university. That is why clause 2 requires students unions and providers to take “reasonably practicable” steps to secure lawful freedom of speech for their members, students, staff and visiting speakers.

As now, the right to lawful free speech will remain balanced by the important safeguards against harassment, abuse and threats of violence as set out in the Equality Act 2010, the Prevent duty and other legislation, none of which we are changing. This is not an ideological effort; it is about fundamental fairness and common sense. These legal duties are key to ensuring that the higher education sector in England continues to be an environment in which students, staff and visiting speakers are not just able but welcome to freely express their views, as long as those views are lawful. The reason we need this effort is because the existing legislation provides no clear means of enforcement, nor does it give a specific right to individuals to seek compensation for breach of freedom of speech duties, leading to concerns that it does not offer serious, sufficient or significant protection.

This is why clause 3 introduces a new statutory tort that will protect visiting fellows, students and other individuals who may not be able to seek redress through employment tribunal. Though this legal route is an important backstop, we do not want all cases going to court where they could otherwise be resolved by other means. We are therefore providing that the Office for Students, the regulator for higher education in England, will play a more active role in strengthening freedom of speech and academic freedom standards in higher education.

Clause 4 imposes new freedom of speech duties on the OFS, including requiring it to promote the importance of freedom of speech within the law and the academic freedom of academic staff at higher education providers. The OFS will also play an important role in identifying best practice and providing advice in relation to the promotion of these rights.

The OFS will have a more direct route to regulate the freedom of speech duties under clause 5, which requires the OFS to set new registration conditions relating to freedom of speech and academic freedom. This clause will ensure that the registration conditions relating to freedom of speech and academic freedom are aligned with the duties on higher education providers imposed by the Bill. The OfS will be able to ensure that these are complied with by using its usual powers of accountability and enforcement, such as the power to impose fines.

As I have said, it is vital that students unions are also doing their bit to ensure freedom of speech on campus. Clause 6 extends the regulatory functions of the OfS so that it can effectively regulate and enforce the new freedom of speech duties that we are placing on students unions. The OfS will monitor compliance and have the power to impose fines.

Lilian Greenwood Portrait Lilian Greenwood
- Hansard - - - Excerpts

When I heard the Universities Minister discussing this matter on the radio some time ago, she suggested that these proposals in the Bill could enable holocaust deniers to seek compensation. Do the Government really want to protect people like that and those sorts of repugnant views? Why is that the Government’s priority?

Gavin Williamson Portrait Gavin Williamson
- View Speech - Hansard - - - Excerpts

As the hon. Lady will know, it is absolutely clear that this Bill will never create a platform for holocaust deniers. She is probably familiar with the Public Order Act 1986, the Equality Act 2010, which was introduced by the Labour party, and the Prevent duties introduced in 2015. If made an Act, this legislation will never create the space to tolerate holocaust deniers.

There is at the moment no direct way for anyone to complain about freedom of speech matters other than for students against their higher education provider. This scheme will provide a route to individual redress for all students, staff and visiting speakers to back up the new strengthened freedom of speech duties provided in the Bill for providers and students unions.

Jess Phillips Portrait Jess Phillips
- Hansard - - - Excerpts

The Secretary of State is describing all the protections that will go to the OfS. I simply ask, will any of those protections provide for compensation and regulation in cases where people are raped or sexually abused on university campuses and have no redress? Will that freedom, for those students, be included? Will they be able to get compensation when their universities mismanage their cases?

Gavin Williamson Portrait Gavin Williamson
- View Speech - Hansard - - - Excerpts

I refer the hon. Lady to the comments that I made some moments ago; we have asked the Office for Students to look into this whole area to see how we can get this redress. She probably noted that I mentioned some of the conditions of registration for higher education institutions that can be part of that process. That is an area that we are looking at and have asked the OfS to address directly.

The OfS will be able to make a recommendation to the higher education provider or students union, which could include, for example, a recommendation to pay a sum in compensation, or reinstate the complainant’s job or place on a course. The scheme will be overseen by the newly created position of director for freedom of speech and academic freedom within the OfS. The director will oversee the various free speech functions of the OfS, including compliance and enforcement. The provision in clause 8 means that there will be an individual in the OfS who has exclusive focus on championing these key values in our higher education sector.

Clause 9 gives effect to the schedule to the Bill, which contains minor and consequential amendments to other legislation. These amendments are necessary to give effect to the main provisions of the Bill, and to make all the relevant legislation work seamlessly and consistently.

Of course, Government action in this area cannot by itself be enough. Cultural change is essential, but, as we have seen in so many areas, such as gender equality or anti-discrimination, cultural change occurs more readily when it is backed up by law. I began by saying that many of us take freedom of speech for granted. The facts on the ground and in universities tell us that this must change. By introducing concise, clear consequences for any breach of a freedom of speech duty, these legislative changes will preserve, protect and safeguard free speech, and open debate in our universities right now, tomorrow and for years to come. Some day—not long from now—our children will thank us for what we do today. I commend the Bill to the House.

--- Later in debate ---
Kate Green Portrait Kate Green
- Hansard - - - Excerpts

As the House will know, my right hon. Friend commands great expertise on issues of national security, and the Secretary of State must satisfactorily answer his question for the House. I know he would agree with my right hon. Friend, with me and with all right hon. and hon. Members that anything that could put our national security at risk, call it into question or give succour to those who seek to harm this country would have to be prevented. If the Secretary of State can put that assurance on the record now, I know that my right hon. Friend would be grateful for it.

Gavin Williamson Portrait Gavin Williamson
- Hansard - - - Excerpts

Indeed, there is a great deal of concern among students from Hong Kong about the fact that they are being silenced in university campuses up and down this country. They have not had the freedom to speak on campus, which is why this Bill is so important—so that different voices, be they Hong Kongers or Uyghurs, are able to speak on campus and not be silenced by much larger groups. That is exactly why this legislation is so incredibly important. I would love to hear from the hon. Lady what freedoms she actually does think are worth protecting.

Kate Green Portrait Kate Green
- Hansard - - - Excerpts

I am not sure whether the Secretary of State was suggesting that Hong Kong students and Uyghurs are silenced on our campuses, which is of course is what we are talking about in this Bill. I am not aware of instances that the Secretary of State has evidenced of such people being silenced on campuses. Indeed, this is a problem with his whole Bill: it is an evidence-free zone when it comes to underpinning the concerns that he says it is addressing.

Gavin Williamson Portrait Gavin Williamson
- Hansard - - - Excerpts

Will the hon. Lady give way?

Kate Green Portrait Kate Green
- Hansard - - - Excerpts

I will take a further intervention—of course I will.

Gavin Williamson Portrait Gavin Williamson
- Hansard - - - Excerpts

I thank the hon. Lady for giving way. Sadly, she is misinformed, as there have been a number of instances where minority students have felt themselves silenced as a result of much larger groups of student bodies putting pressure on, especially within student unions, to silence them. This is why this legislation is so incredibly important; those students, be they of Hong Kong or Uyghur descent, should always have the ability to be able to talk openly and freely on university campuses so that these challenges can be properly exposed.

Kate Green Portrait Kate Green
- Hansard - - - Excerpts

I am sorry, but I do not think the Secretary of State has been able to answer my direct question about instances of Uyghur and Hong Kong students being deterred from speaking on our campuses. He talks in general terms about some groups being silenced—I agree with him that that is wrong, and I will come on to that point in a moment—but I have asked him to present specific instances to the House. If he cannot do that this afternoon, and I understand that he may not have that information in front of him, perhaps later he will put that evidence in the House of Commons Library so that we can all examine it before the Bill goes into Committee.

--- Later in debate ---
Gavin Williamson Portrait Gavin Williamson
- Hansard - - - Excerpts

I am curious to know whether the hon. Lady can state what the acceptable level of self-censorship is that she is comfortable with.

Kate Green Portrait Kate Green
- Hansard - - - Excerpts

The point is not whether I think self-censorship is acceptable—I do not—the question is whether legislation is the right response to it. I just believe that at a time when we have many other priorities to deal with on our university campuses—[Interruption.] There should be no self-censorship of lawful and honourable views, but it is not acceptable to make legislation and use valuable parliamentary time to deal with a small number of cases that could be dealt with more effectively without legislation. The reason I say that is that we already have the legislative framework we need on the statute book.

Section 43 of the Education (No. 2) Act 1986, “Freedom of speech in universities, polytechnics and colleges”, reads almost identically to new section A1 under clause 1 of the Bill. It creates a legal duty to promote freedom of speech for students, staff and visiting speakers. Similarly, the Higher Education and Research Act 2017 already creates a duty for the universities regulator to protect academic freedom.

Kate Green Portrait Kate Green
- Hansard - - - Excerpts

The Secretary of State should have perhaps made these arguments in his opening speech, but I will of course give way to him again, although I hope he will make time for other colleagues.

Gavin Williamson Portrait Gavin Williamson
- Hansard - - - Excerpts

The hon. Lady is always incredibly generous, and it is much appreciated. I hope that I always repay the compliment in return when she intervenes. I am sure she will also be able to set out the steps under the existing legislation that an academic, a student or, potentially, a visiting speaker who has been cancelled could take.

Kate Green Portrait Kate Green
- Hansard - - - Excerpts

I think the Secretary of State is driving at clause 3 of the Bill, which would create a statutory tort. [Interruption.] I think he is driving at the need for clause 3 and the statutory tort, and I just want to express some of my concerns about that.

Gavin Williamson Portrait Gavin Williamson
- Hansard - - - Excerpts

Would you like me to tell you?

Kate Green Portrait Kate Green
- Hansard - - - Excerpts

I am answering the question that the Secretary of State asked me a moment ago. The Bill means that we will be in a situation where those who wish to challenge a refusal to allow them to speak on campus—

Gavin Williamson Portrait Gavin Williamson
- Hansard - - - Excerpts

Would you like me to tell you?

Kate Green Portrait Kate Green
- Hansard - - - Excerpts

No, I would not like the Secretary of State to intervene again while I am still answering the question he asked me a moment ago. The problem with the Bill and clause 3, which creates a new route for individuals, is that it is more harmful in its effect. It opens up the possibility for vexatious litigants and their lawyers repeatedly to bypass internal complaints procedures, repeatedly to bypass the Office of the Independent Adjudicator route or the Office for Students route and go straight to the courts, undermining confidence in those procedures, undermining the funding of universities and student unions and causing confusion about the routes for redress that speakers should be able to take advantage of.

I am going to make a little bit of progress, because I know that many others want to come into the debate. The Bill before us tonight is wasting legislative time by repeating provisions already found in law to address a problem that has not been evidenced by the debate so far today. I recognise that the Joint Committee on Human Rights raised concerns that the current legislative framework was complex, but the Government’s plans seem only to complicate things further by duplicating legal duties and creating new legally actionable wrongs that would operate in parallel to university and student union processes. It seems impossible that the Bill will leave the position clearer than it is currently.

Let me be generous and assume for a moment that, despite the provisions that already exist in our laws, this Bill is needed, that in the face of the evidence we have heard so far there is a crisis of free speech on campuses and that the Bill will remedy the situation. Let us see if it succeeds on its own terms. It does not. It is a mess of duplication, poor definition and ill-thought-through provisions that will set back free speech. Let me start with an easy problem: the extent of the Bill. It applies to registered higher education providers and to student unions, and immediately we appear to hit a gap in coverage. Oxford and Cambridge colleges are not included in the register kept by the Office for Students. Does that mean that if a violation of free speech takes place in a building owned by, say, Balliol college, Oxford, instead of by the University of Oxford, it is not within the scope of the Bill? Or if it takes place in a pub in the city of Cambridge owned by the university, and someone is removed from the pub for offensive but legal speech, could they take legal action against the university?

Who are members of the university for the purposes of the Bill? MillionPlus, for example, has asked whether it would cover emeritus professors. Is it desirable to risk the Office for Students, a body whose board is appointed directly by politicians, effectively becoming a state censor of controversial topics? Why does the Secretary of State believe that clause 3 is needed? Why does he think that we need a route straight to court, bypassing university complaints procedures? If he does believe that a route to court is necessary, can he say whether there will be any limit on the damages that could be awarded? Does he not understand that, as Universities UK has warned, this risks giving a free pass to vexatious litigants and their lawyers?

Even if we thought the Bill were needed, it is poorly drafted and counterproductive. Today, we are debating a Bill that has been put forward in response to a problem that exists largely in the mind of the Secretary of State. Even if the problem did exist, the Bill would not be needed because its core provisions already exist in our laws, and even if new legislation were needed, the Bill creates more problems than it solves and is poorly drafted. In short, in every way that a Bill can fail, this Bill fails.

However, the real menace is what the Bill will achieve if the Conservative party is able to get it on to the statute book. It will enshrine legal protections for harmful and divisive speech. The kind of speech that we would not tolerate in this House would be protected in universities across the country. The Bill creates a new legal framework that allows for those responsible for such harmful speech to take legal action against universities, eating into the resources that ought to be educating our young people and supporting our world-class research programmes. The Bill is unnecessary and it is poorly drafted, but above all, it is deeply wrong and those of us on the Labour Benches will not support it. I commend our reasoned amendment to the House.

--- Later in debate ---
Michelle Donelan Portrait The Minister for Universities (Michelle Donelan)
- Hansard - - - Excerpts

We have heard a range of views today, but the House is united in an understanding that free speech is the cornerstone of democracy and a liberal society. That was passionately articulated by my hon. Friend the Member for Congleton (Fiona Bruce), my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) and many others, who shared an endless list of examples of the curtailment of free speech on our campuses.

Disappointingly, though, there was disagreement from those on the Opposition Benches over the role that the Government should take to protect and promote free speech. On the Government side of the House, we believe that standing up for free speech is a key responsibility of any democratic Government, we believe that students and lecturers should not be silenced, and we are prepared to stand up for free speech and not just make tokenistic soundings regarding its value. That is why we are bringing forward this legislation to deliver on our manifesto pledge.

Some hon. Members questioned whether there is a problem on our campuses. Tell that to the countless academics and students who have shared their experiences with me. Tell that to the students and academics whose stories have been shared by hon. Members today.

Lord Beamish Portrait Mr Kevan Jones
- Hansard - - - Excerpts

The hon. Lady has just said that she has countless examples. Will she, after the debate—if she does not have it with her now, that is fine; I accept that—publish the data on which the Bill is based? That would at least show that there is some evidence behind the Bill, rather than just the hearsay she is telling us about.

Michelle Donelan Portrait Michelle Donelan
- Hansard - - - Excerpts

I am confused about how the right hon. Member cannot recognise the evidence. We have heard from so many hon. Members today who have shared examples: my hon. Friends the Members for Ashfield (Lee Anderson) and for North West Durham (Mr Holden); the hon. and learned Member for Edinburgh South West (Joanna Cherry); the hon. Member for Canterbury (Rosie Duffield); my right hon. Friend the Member for South Holland and The Deepings; the hon. Member for Gower (Tonia Antoniazzi), and my hon. Friends the Members for Congleton and for Dudley North (Marco Longhi).

Numerous studies have shone a spotlight on the problem, but they only document the tip of the iceberg, given the nature of the chilling effect outlined by my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). Think for a moment about those who feel too afraid to speak out for fear of repercussion, and feel that they have to self-censor. Our universities should always be bastions of freedom and intellectual discussion. That point was well made by my hon. Friend the Member for Watford (Dean Russell).

As my hon. Friend the Member for Penistone and Stocksbridge (Miriam Cates) stressed, how can we expect society to progress or opinions to modernise unless we can challenge the status quo? The intolerance and influence of some has led students and academics to self-censor their views. Those individuals are some of the best and brightest, yet their ideas go unexpressed. Imagine the potential loss here—we will never know. We can, at least, look back at the past. Where would we be now if the views of 100 or even 200 years had never been challenged? As a woman, I doubt I would be an MP, let alone Universities Minister.

No one can deny the massive impact that covid has had on students, universities and staff. However, to address the question asked by the hon. Member for Warwick and Leamington (Matt Western) as to why we are doing this now, I would argue that covid has highlighted the value of personal freedoms that many of us used to take for granted. That is on top of the fact that the British public placed their faith in us to deliver on a manifesto—and deliver we certainly will.

We have heard from some Opposition Members that we need cultural, not legislative, change. I remind them that current legislation lacks an enforcement mechanism. Yes, some universities, including Essex, have got their house in order, and we recently saw a strong commitment from the Russell Group, but as so many speakers today have highlighted, there is a problem. We also know the crucial role legislation can play, and has played, in cultural change; take gender equality, race discrimination and human rights as examples.

A number of Members spoke about how higher education providers will have to balance competing duties. It is important to remind the House that they already have to do that. However, the Bill places a duty on providers to take reasonably practicable steps to secure lawful free speech. It does not supersede the Prevent duty or the Equality Act. The requirement to take reasonably practicable steps is right. It cannot be sensible to require providers to act unreasonably or to ignore their other legal duties. The Bill will give providers further clarity, because the new director will give advice and issue comprehensive guidance.

I want to be very clear: this Bill only protects lawful free speech. Harassment, racism, discrimination, hate crimes, and incitement of violence or terrorism will have no place on our campuses or in our society. In fact, I vehemently believe that we should defend and safeguard freedoms on all fronts, from freedom of speech to freedom from persecution.

Christian Wakeford Portrait Christian Wakeford
- Hansard - - - Excerpts

What we have heard from those on the Opposition Benches, in trying to suggest that holocaust deniers will be supported in going on to our university campuses, is clearly fearmongering. Will the Minister set the record straight and highlight that that is not the case and that we are supporting our students?

Michelle Donelan Portrait Michelle Donelan
- View Speech - Hansard - - - Excerpts

I absolutely confirm that, and I agree with my hon. Friend.

Some Members have asked how the Bill will interact with the Government’s work to combat antisemitism. Antisemitism is abhorrent and will not be tolerated in our universities, which is why we have encouraged more than 100 higher education providers to sign up to the International Holocaust Remembrance Alliance definition. Regarding the specific question of holocaust deniers, any attempt to deny the scale or the occurrence of the holocaust is morally reprehensible and has no factual basis. In many cases, those who deny the holocaust have links to neo-Nazi extremism, antisemitic violence and intimidation. There are numerous reasons why someone who denies the holocaust should not be invited to speak on campus, and nothing in the Bill gives them a right to a platform.

Lord Beamish Portrait Mr Kevan Jones
- View Speech - Hansard - - - Excerpts

I agree totally with the hon. Lady and I do not think for one minute that she is promoting those individuals, but what is to prevent a holocaust denier who has been denied the opportunity to speak at a university from using the legal framework in the Bill to sue that university? The legal action might not get anywhere, but the university would have to spend a lot of time and effort defending itself.

Michelle Donelan Portrait Michelle Donelan
- Hansard - - - Excerpts

I thank the right hon. Member for his intervention.

The European Court of Human Rights has held that holocaust denial is not protected speech under article 10 of the European convention on human rights and as such is intolerable in a democratic society. I will put on record again, just as my right hon. Friend the Secretary of State did before, that there is no place in universities for an extremist views that masquerades as fact but is complete fiction while grotesquely seeking to misinterpret global history in a deeply offensive way. To be absolutely clear, the Bill does not override the existing duties under the Equality Act regarding harassment and unlawful discrimination. The public sector equality duty, the Prevent duty, hate crime and, of course, criminal law may apply. That point was excellently articulated by a number of Members, including my hon. Friend the Member for Bury North (James Daly).

The Opposition raised the issue of anti-vaxxers. We have one of the world’s most successful vaccination programmes, with over half of 18 to 24-year-olds already having had their first jab. The Bill categorically does not give the right to a platform to anti-vaxxers who may make baseless claims. This makes me wonder whether the Opposition have, in fact, read the Bill. We will not be supporting their amendment today, as it serves only to highlight their desire to inhibit free speech. The hon. Members for Stretford and Urmston (Kate Green) and for St Albans (Daisy Cooper) argued that the Bill would result in universities refraining from inviting speakers. The reality is that it places a duty on providers to promote free speech, and they will be investigated by the director if they fail to meet that duty. The importance of the new duty to promote was clearly articulated by the right hon. Member for North Durham (Mr Jones).

I want to note the powerful speech by the hon. Member for Birmingham, Yardley (Jess Phillips). I agree 100% that abhorrent sexual harassment has absolutely no place on our campuses, and every university should have a robust complaints process. Two weeks ago, I wrote to all universities stating the Government’s clear view that non-disclosure agreements should not be used in these circumstances, and the OfS has produced a statement of expectation and is looking at creating a new registration condition. I recently met the founders of Everyone’s Invited, and I would also be happy to meet the hon. Member to discuss this important topic.

My hon. Friend the Member for Bury South (Christian Wakeford) raised the issue of security costs resulting from no-platforming, and cited the example of the Israeli ambassador. Higher education providers should not be no-platforming by the back door. The Bill is clear that reasonably practical steps should be taken to secure freedom of speech for visiting speakers, and I expect the Office for Students guidance to make it clear that this applies to security costs.

The Bill will protect numerous views that are alien to me and to many in this Chamber, but it is not only naive but dangerous to suggest that defending the right of a view in any way endorses a specific view. Surely, as politicians, we should all agree with the sentiment of Evelyn Hall, who stated when summing up Voltaire’s views:

“I disapprove of what you say, but I will defend to the death your right to say it.”

It is disappointing that not all Opposition Members understand this simple principle, which is much at the heart of the Bill: not a right-wing, anti-woke agenda but an agenda that allows all views and ideas to flourish. We have an immeasurable pool of talent in our students and academics, overflowing with ideas and values that will drive forward this country to build back better, and now is the time to unlock their potential.

Universities should not be echo chambers but petri dishes of new, thought-provoking ideas, concepts and visons. That is why this Government are making good on their manifesto commitment to tackle the pattern of self-censorship and its chilling effect by protecting and bolstering free speech and academic freedom. I commend the Bill to the House.

Question put, That the amendment be made.

--- Later in debate ---
21:50

Division 48

Ayes: 216

Noes: 367

The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.

Higher Education (Freedom of Speech) Bill (Carry-over)

(Limited Text - Ministerial Extracts only)

Read Full debate
Carry-over motion
Monday 25th April 2022

(2 years, 6 months ago)

Commons Chamber
Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Amendment Paper: Notices of Amendments as at 12 January 2022 - (12 Jan 2022)

This text is a record of ministerial contributions to a debate held as part of the Higher Education (Freedom of Speech) Act 2023 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Michelle Donelan Portrait The Minister for Higher and Further Education (Michelle Donelan)
- Hansard - - - Excerpts

Let me be crystal clear: the Government remain committed to delivering on our manifesto pledge by strengthening freedom of speech in higher education. We have not changed, and never will change, our position, because we recognise that free speech is the absolute cornerstone of democracy and a liberal society. Our universities should be centres of inquiry and intellectual debate, and places of new and independent thinking from which will grow the knowledge, learning and science that we need to tackle future global challenges. The reintroduction of the Higher Education (Freedom of Speech) Bill reaffirms our manifesto commitment, yet the Opposition’s position can be described only as perplexing. First they said that if such legislation were needed they would support it, but then they changed their position to say that the issue does not exist and they will not support the Bill. Now their position has become even more confusing.

Once again, the Opposition find themselves entirely out of step with the British people on a matter of fundamental importance. Their unwillingness to acknowledge that this is an issue has shown their contempt for the views of ordinary people, and their unwillingness to support a democratic legislative solution without an alternative plan —something that was very clear throughout Committee —shows that, as always, their cynical party politicking comes ahead of common sense. Even now they try to deflect by a ruse to suggest that our commitment to this issue has waned. This Bill will ensure that lawful free speech is supported to its full extent.

Question put and agreed to.

animal welfare (kept animals) Bill: Carry over

Ordered,

That—

if, at the conclusion of this Session of Parliament, proceedings on the Animal Welfare (Kept Animals) Bill have not been completed, they shall be resumed in the next Session; paragraphs (9) to (14) of Standing Order 80A shall have effect in relation to the Bill as if it had been ordered to be carried over to the next Session of Parliament in pursuance of a carry-over motion under paragraph (1) of that Standing Order, except that paragraph (13) shall have effect as if the period on the expiry of which proceedings on the Bill shall lapse is two years from the date of its first reading in this House.—(Victoria Prentis.)

Higher Education (Freedom of Speech) Bill

(Limited Text - Ministerial Extracts only)

Read Full debate

This text is a record of ministerial contributions to a debate held as part of the Higher Education (Freedom of Speech) Act 2023 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Michelle Donelan Portrait The Minister for Higher and Further Education (Michelle Donelan)
- Hansard - - - Excerpts

I beg to move, That the clause be read a Second time.

Baroness Laing of Elderslie Portrait Madam Deputy Speaker (Dame Eleanor Laing)
- Hansard - - - Excerpts

With this it will be convenient to discuss the following:

New clause 1— Duty to disclose overseas gifts and contracts affecting freedom of speech

‘In section A3 of the Higher Education and Research Act 2017 (inserted by section 1), at end insert—

“(2) Whenever a registered higher education provider, or any of its members, employees, departments or associated bodies, enters into a disclosable arrangement with an overseas counterparty, its governing body shall, as one part of discharging the duty to promote the importance of freedom of speech and academic freedom in subsection (1), promptly report the required information about such arrangement to the OfS and the Secretary of State.

(3) By 30 April each year, the OfS shall publish on its website a searchable report which contains all required information which has been disclosed to it pursuant to subsection (2) above in the preceding year.

(4) If the governing body of a registered higher education reasonably believes that the publication of the identity of the overseas counterparty pursuant to subsection (3) or subsection (6) might present a risk of serious harm to any natural person, it may notify the OfS and will provide such information as the OfS may require to investigate such risk(s).

(5) If, following a report under subsection (4) above and such investigation as it considers appropriate in the circumstances, the OfS finds that the publication of the identity of the overseas counterparty pursuant to subsection (3) or subsection (6) might present a risk of serious harm to any natural person, then it may redact such information from its report.

(6) By 30 April 2023, the governing body of each registered higher education provider shall report to the OfS and the Secretary of State the required information of any disclosable arrangement which it, or any of its members, employees, departments or associated bodies, entered into during the ten years prior to this section coming into force, and the OfS shall publish such information on its website in a searchable report by 30 April 2024.

(7) If the registered higher education provider fails to comply with this duty, the OfS may enforce compliance in civil proceedings for an injunction.

(8) In this Part—

(a) “associated bodies” means any company, institution, trust, organisation or similar body or group in respect of which the relevant registered higher education provider has significant control or ultimate beneficial interest;

(b) “disclosable arrangement” means any formal or informal contract, gift or other arrangement by which a financial or other advantage is offered, promised or given to a registered higher education provider or any person or body mentioned in subsection (2) above, whether conditionally or unconditionally, which is equal to or exceeds £50,000 (or would equal or exceed such value in combination with other potentially disclosable arrangements entered into with the same overseas counterparty, or connected overseas counterparties, within the previous twelve months);

(c) “overseas counterparty” means—

(i) any natural person who holds citizenship of, or is domiciled in, any country or territory outside the United Kingdom (or any subdivision of such a country or territory);

(ii) any government, organisation, institution, company, foundation, legal person, trust, or similar body or group which is registered, incorporated, headquartered or carries out significant activities in any country or territory outside the United Kingdom (or any subdivision of such a country or territory) or in respect of which ultimate beneficial ownership or significant control resides in a person falling within subsection (c)(i) above; or

(iii) any person acting in any capacity for or on behalf of any person who would fall within subsection (c)(i) or (c)(ii) above if they were acting on their own account;

(d) “required information” means—

(i) the exact value of the relevant disclosable arrangement(s);

(ii) the identity of the overseas counterparty and the name of any relevant country or territory (and, if relevant, such information about the person(s) for whom they are acting or in whom ultimate beneficial ownership or significant control resides);

(iii) the date on which the relevant disclosable arrangement(s) was entered into;

(iv) details on the general purpose of the relevant disclosable arrangement(s); and

(v) any specific stipulations or obligations imposed on the registered higher education provider or any of its members, employees, departments or associated bodies (including, but not limited to, any changes to any curricula, governance or control of them).””

This new clause seeks to introduce transparency and public reporting of foreign donations to universities, in order to promote freedom of speech and academic freedom, and increase public confidence in universities.

New clause 3—Duties regarding language and cultural programmes

In section A3 of the Higher Education and Research Act 2017 (inserted by section 1), at end insert—

‘(2) Whenever a registered higher education provider enters into partnership with an overseas organisation to deliver foreign language, culture or exchange programmes or courses, its governing body must, as one part of discharging the duty to promote the importance of freedom of speech and academic freedom in subsection (1), promptly report the required information about the partnership to the OfS and the Secretary of State.

(3) In response to the information received under subsection (2), and where there are concerns regarding the effect of the partnership on freedom of speech and academic freedom, the Secretary of State may issue a direction to the registered higher education provider.

(4) A direction under subsection (3) may be either to—

(a) terminate the partnership, or

(b) offer an equivalent range of programmes or courses delivered in partnership with an alternative organisation.

(5) In this Part, “required information” means—

(a) the financial value of the partnership;

(b) any specific stipulations or obligations imposed on the registered higher education provider or any of its members, employees, departments or associated bodies (including, but not limited to, any changes to curricula, governance or control of them).”

New clause 4—Appointment of the Director for Freedom of Speech and Academic Freedom

‘(1) A person may not be appointed as the Director for Freedom of Speech and Academic Freedom (‘Director’) if the person has at any time within the last three years made a donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.

(2) The person appointed as the Director may not whilst in office make any donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.

(3) The appointment for the Director shall be made by an independent advisory panel to be established by regulations made by the Secretary of State.

(4) The appointment of the Director for Freedom of Speech and Academic Freedom shall be subject to a confirmatory resolution of the relevant Select Committee of the House of Commons.

(5) A statutory instrument containing regulations under subsection (3) may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”

This new clause would ensure that the Director of Freedom of Speech and Academic Freedom has not and cannot whilst in office donate to a political party and ensure they are only appointed subject to confirmation of an independent advisory panel, the Select Committee of the House of Commons and a resolution of each House of Parliament.

New clause 5—Sunset clause

‘(1) This Act expires at the end of the period of 3 years beginning with the day on which it is passed.

(2) A Minister of the Crown may by regulations made by statutory instrument remove any of the provisions of this Act after one year from the day on which it is passed if he is not satisfied that the provision is working as intended.

(3) Before three years from the day on which this Act is passed a Minister of the Crown must present to Parliament a written report on the effectiveness of the provisions of the Act.

(4) A Minister of the Crown may by regulations made by statutory instrument renew this Act, subject to parliamentary approval in full or in part, or make transitional, transitory or saving provision in connection with the expiry of any provision of this Act.

(5) Regulations under this section shall be subject to the affirmative procedure.”

This new clause would mean the legislation would have to be renewed by Parliament after a period of three years.

New clause 6—Academic staff: interpretation

‘(1) Section 121 of the Higher Education and Research Act 2017 is amended as follows.

(2) After “Act—” insert—

“academic staff, for the purposes of any provision inserted by the Higher Education (Freedom of Speech) Act 2022, includes any academic staff (however engaged or employed), honorary, visiting and emeritus academic members of a provider and any other person held out as holding any academic position at the provider;””

New clause 7—Harassment

In section 26 of the Equality Act 2010, after subsection (4)(c) insert—

“(d) when A is a student or a member of the academic staff of a registered higher education provider and the conduct took place in the context of a discussion in a higher education setting—

(i) the importance of freedom of speech and academic freedom, as provided for under Part A1 of the Higher Education and Research Act 2017 (as inserted by section 1 of the Higher Education (Freedom of Speech) Act 2022), and

(ii) whether A intended to harass B, or was reckless as to whether A’s conduct constituted harassment towards B.”

Amendment 21, in clause 1, page 2, line 2, at end insert—

“(3A) Any conduct that would otherwise constitute conduct having the effect of harassment in accordance with section 26(1) of the Equality Act 2010 shall, notwithstanding any provision to the contrary in that Act, constitute freedom of speech within the law for the purposes of subsection (2), provided that—

(a) the conduct constitutes, or forms part of, discussion of an academic or scientific matter in a higher education setting, and

(b) the person engaging in such conduct did not know or could reasonably not have known that it would have the effect of harassment.”

Amendment 19, in clause 1, page 2, line 6, at end insert—

“(4A) The objective in subsection (2) includes securing that no person listed in paragraphs (a) to (d) of subsection (2) is deprived of an ability to speak freely as a result of a non-disclosure agreement or confidentiality agreement between that person and the governing body of the registered higher education provider.

(4B) The provision in subsection (4A) does not prevent the use of a non-disclosure agreement in any case where the governing body and academic staff member agree that a non-disclosure agreement or confidentiality agreement is necessary for the protection of intellectual property.”

This amendment would ensure that non-disclosure agreements or confidentiality agreements between those listed on the Bill and a higher education providers does not inhibit the freedom of speech for those concerned, save where it is agreed to protect intellectual property.

Government amendment 1.

Amendment 17, in clause 1, page 2, line 14, at end insert—

“(c) to conduct research,

(d) to engage in intellectual inquiry and contribute to public debate,

(e) to criticise any institution,

(f) to be affiliated to any institution, and

(g) to be a member of a trade union body,”

This amendment would widen the definition of academic freedom.

Government amendments 2 and 3.

Amendment 20, in clause 1, page 2, line 32, after “views” insert “or to share experiences”.

This amendment is consequential on Amendment 19.

Government amendments 4 to 10.

Amendment 18, in clause 8, page 9, line 32, at end insert—

“(3A) In reaching a decision as to the extent to which a free speech complaint is justified, the OfS must be mindful of the following—

(a) the right of students to feel safe on university campuses, and

(b) other legal duties of governing bodies and students’ unions, such as but not limited to those under the Equality Act 2010 and section 26 of the Counter-Terrorism and Security Act 2015.”

This amendment would ensure other competing freedoms as found in the Equality Act and the Counter-Terrorism Act and Security Act 2015 are considered in relation to complaints lodged under the Free Speech Complaints Scheme

Government amendments 11 to 16.

Michelle Donelan Portrait Michelle Donelan
- View Speech - Hansard - - - Excerpts

I thank all Members for their important contributions throughout the Bill’s consideration. More than two thirds of the world’s population live in countries where academic freedom is severely limited. For decades, people have travelled across the globe to study in the UK because we are one of the few nations in which free, fair and lawful speech at university is truly valued. It is no coincidence that the most academically free countries in the world are also the most socially progressive, the most democratic, the most peaceful and, of course, the most prosperous.

Free speech is as fundamental to what academics and students do on university campuses as it is to what we do in the House. However, as we saw on Second Reading, the Opposition chose to deny that there is a problem at all, despite overwhelming evidence to the contrary. In fact, since we last debated the Bill, the UK has become the only country in the top tier of academically free countries to be significantly downgraded by the academic freedom index. A report published by the Varieties of Democracy Institute determined that despite the UK’s status as a historic bastion of academic freedom and scientific excellence, not only is academic freedom in the UK declining but that decline appears to be accelerating.

Edward Leigh Portrait Sir Edward Leigh (Gainsborough) (Con)
- Hansard - - - Excerpts

The Alliance of Pro-Life Students says that more than 70% of pro-life students face situations in seminars or lectures where they feel unable to speak openly, and one in three students surveyed had seen events cancelled due to the no-platforming of pro-life students and speakers. Will the Minister make it absolutely clear that whatever people’s views on pro-life issues, those who take that stance have a right to be heard in our universities?

Michelle Donelan Portrait Michelle Donelan
- View Speech - Hansard - - - Excerpts

I wholeheartedly agree with my right hon. Friend. Of course, they deserve and have a right to be able to air their views and debate that subject.

In oral evidence, Dr Arif Ahmed spoke about how his fellow academics told him that they supported his campaign for free speech but were concerned that their careers would be impacted if they aired that publicly. We also heard from Professor Kathleen Stock, who has been the subject of the most grotesque and sustained campaign of threats and abuse, which compelled her to resign. Is it therefore any wonder that, in 2019, a King’s College London survey found that, chillingly, one in four students believed that physical violence was justified to shut down views that they deemed to be hateful?

The following year, a report by Policy Exchange found widespread self-censorship among university staff, but students and staff did not need to wait for those damning studies or for oral evidence to be published to know that there was a problem. The students forced to self-censor know that there is a problem. The academics bullied off campus, excluded by colleagues or forced to censor their lectures know that there is a problem. Legitimate organisations, speakers and guests who have been no-platformed or physically and verbally abused on campus know that there is a problem. It is just the Opposition who have their heads in the sand.

--- Later in debate ---
Alicia Kearns Portrait Alicia Kearns (Rutland and Melton) (Con)
- Hansard - - - Excerpts

Will the Minister confirm that the Secretary of State will maintain the ability to direct the director to further inquiry, should he have concerns that the OfS is not investigating an issue suitably?

Michelle Donelan Portrait Michelle Donelan
- Hansard - - - Excerpts

Of course, we work hand in hand with the OfS and if there were concerns, we would be able to direct.

We are introducing a new complaint scheme, operated by the OfS, for students, staff and visiting speakers who have suffered loss as a result of a breach of those duties. On top of that, we are introducing a new statutory tort as a legal backstop. The Government tabled amendments in Committee to ensure that new strengthened freedom of speech duties apply directly to constituent colleges of registered higher education providers. That will ensure that appropriate institutions must comply with the new duties in universities such as Oxford, Cambridge and Durham.

Daniel Zeichner Portrait Daniel Zeichner (Cambridge) (Lab)
- Hansard - - - Excerpts

Will the Minister give way?

Michelle Donelan Portrait Michelle Donelan
- Hansard - - - Excerpts

I will, and then I will make progress.

Daniel Zeichner Portrait Daniel Zeichner
- Hansard - - - Excerpts

I am grateful. I am sure the Minister will be aware that institutions such as the University of Cambridge are concerned about the extra bureaucracy that may well create—particularly for commercial partnerships, which are completely unrelated to freedom of speech issues. Will she clarify what is meant by “constituent institutions” and the intent in new clause 2? Is she really putting a general monitoring duty on the OfS to require pre-emptive reporting?

Michelle Donelan Portrait Michelle Donelan
- Hansard - - - Excerpts

The hon. Gentleman raises a few points. In new clause 2, “constituent institutions” mean colleges. It is right that we should not have a potential loophole in the Bill. When forming new clause 2, I worked very closely with the university sector, including the University of Cambridge, so I ask him, respectfully, to talk to it again.

A number of important issues were raised in Committee. Opposition Members expressed concerns that the Bill would protect hate speech on campus. I have been clear throughout the passage of the Bill and will make the point once again: the Bill is only about lawful free speech. Let me be clear that this cheap shot has no actual validity. It is the Opposition’s attempt to discredit the Bill. It is a strong signal that they are content for an intolerant minority to silence those they disagree with, content for academics to feel the need to self-censor, content for students to miss out on the ability to debate, to critique and to challenge, and, ultimately, content to stifle debate. The Bill does not override the existing duties under the Equality Act 2010 regarding harassment and unlawful discrimination, nor the public sector equality duty and the prevent duty. Nor does it give anyone the right to be invited to speak at a university.

There were also questions from Members on both sides of the House, including my hon. Friend the Member for Congleton (Fiona Bruce), on whether junior researchers and PhD students will be covered as academic staff. That was laid as an amendment by my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes). To clarify, the Bill uses the term “staff” to broaden the existing reference to employees, as not all those who work for a higher education provider have an employment contract or employee status. I can confirm that it will include those on short-term, casual contracts and PhD students undertaking teaching.

I now turn to the Government amendments tabled in the name of my right hon. Friend the Secretary of State. New clause 2 and Government amendments 13 and 14 will impose a duty on the Office for Students to monitor the overseas funding of registered higher education providers and their constituent institutions, so as to enable it to assess the risk from such funding on freedom of speech and academic freedom. The duty will include a requirement to consider this in the context of a finding of a breach of new section A1 in clause 1. Higher education providers will be required to supply to the OfS information about overseas funding from certain individuals and organisations, with the details to be set out in regulations. The funding will cover not only the income that providers receive, but that of their constituent institutions, their members and their staff in their capacity as such. Similar provision will also apply to student unions. The OfS must include a summary of the information in its annual report, along with relevant patterns of concern.

Our amendments are proportionate, but we must ensure that our higher education system remains world leading, safeguarding an environment in which freedom of speech and academic freedom can thrive.

Caroline Johnson Portrait Dr Caroline Johnson (Sleaford and North Hykeham) (Con)
- Hansard - - - Excerpts

The Secretary of State was escorted off the premises by security following his attendance to give a speech at one of our leading universities, after he was hassled. That was shameful behaviour, but that level of security is not available to everyone at all times. We need not just legislative change but a culture change, so that we accept that everyone with a different view is not a bad person and that there is not necessarily a right or wrong answer. What wider work are the Government are doing to instil that in younger children before they get to university?

Michelle Donelan Portrait Michelle Donelan
- Hansard - - - Excerpts

My hon. Friend is right. We need a cultural change, and legislation of this nature can spur such change. In our schools, we also need an environment of openness and frankness, and to grow that throughout the education system. I know that my colleagues in the Department are looking at this and will provide further guidance to support teachers shortly.

I know and understand the concerns raised by hon. Members, including my right hon. Friends the Members for Hereford and South Herefordshire (Jesse Norman) and for Chingford and Woodford Green (Sir Iain Duncan Smith), and my hon. Friend the Member for Rutland and Melton (Alicia Kearns), which is why the Government are acting on new clause 3. I can confirm explicitly that the Government amendment will include educational partnerships, including Confucius institutes, and that the OfS will be able to impose a wide range of proportionate remedies as specific conditions of registration. That could include requiring a provider to make available alternative provision, or even to terminate a partnership if necessary to protect free speech. We will ask the OfS and its new director to make it clear that those are possible remedies in the guidance that will be published.

We of course continue to welcome foreign investment and donations to higher education as a key part of supporting innovation and development, but the amendments will increase the transparency of overseas income by requiring granular data to be reported to the OfS. Our intention is to proscribe countries for the purpose of the amendment by mirroring the countries listed in the academic technology approval scheme, which will exclude countries such as our NATO and EU allies, as well as countries such as Japan. We also intend to set a threshold of £75,000 in regulations. Hon. Members should be assured that in each case the ability to make provision by way of regulations will allow us the flexibility to amend as appropriate.

Alicia Kearns Portrait Alicia Kearns
- Hansard - - - Excerpts

I thank my right hon. Friend for the significant time that she has invested in speaking to my colleagues and me about this. Can she confirm clearly that Confucius institutes will fall within the remit of the organisation she is discussing because of the grave concerns about their strangulation of freedom of speech and thought on British campuses?

Michelle Donelan Portrait Michelle Donelan
- Hansard - - - Excerpts

I can confirm that Confucius institutes fall within the scope of these proposals, as I have outlined, and I urge all universities to increase the choice that they provide to students in this regard.

Iain Duncan Smith Portrait Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)
- View Speech - Hansard - - - Excerpts

Following the intervention by my hon. Friend the Member for Rutland and Melton (Alicia Kearns), I wish to be assured on one point. Do the Government genuinely believe that the Confucius institutes pose a threat? Other Governments in the free world have banned the institutes from campuses, not only because they limit free speech, but because they have been involved in spying on Chinese students, especially those who show any kind of disregard for what China does. The institutes are very dangerous, and the issue goes wider than just the ability to shut down free speech: they are also reporting back about Chinese students, many of whom live in fear.

Michelle Donelan Portrait Michelle Donelan
- Hansard - - - Excerpts

Many countries have worked with their university sectors to enhance the choice on offer. For the first time, the Bill will give the OfS the power to act if free speech is in question, so it is radical in that sense.

Julian Lewis Portrait Dr Julian Lewis (New Forest East) (Con)
- Hansard - - - Excerpts

I appreciate that the provision is mainly about free speech in UK universities, but does the Minister share my concern about the proposed £155 million gift from the billionaire chairwoman of a Vietnamese company to Linacre College, Oxford, a distinguished graduate college, on condition that the name of the college is changed to that of the chairwoman? Her company is extremely close to the Vietnamese Communist Government, where there is certainly very little freedom of speech. The Privy Council has to approve the change. Are the Government taking a view on the matter?

Michelle Donelan Portrait Michelle Donelan
- Hansard - - - Excerpts

I have recently been alerted to this issue and I am actively investigating it. I will update my right hon. Friend in coming days.

Government amendments 3 and 4 and 6 to 10 make provision on the payment of security costs for events. The amendments place a duty on higher education providers, colleges and student unions not to pass on security costs unless in exceptional circumstances to secure freedom of speech within the law. The Government want to put an end to the practice of no-platforming by the back door, raised by many Members in Committee, including my right hon. Friend the Member for South Holland and The Deepings.

I said then that I was listening, and the amendments address the concerns. We have seen reports that a student society faced a £500 security bill from Bristol University student union to allow the Israeli ambassador to give a talk, while charging nothing to allow his Palestinian counterpart to do the same. The Union of Jewish Students has reported to me that some Jewish societies have even been billed for security costs for having stalls at freshers’ fairs. That is outrageous. If a university has a culture on campus in which security is required for inviting routine speakers, it has a culture in which intimidation, threats and violence are seen as acceptable. That does not constitute promoting free speech. The solution is to stamp that unacceptable culture out and stop student societies paying the price for those who break the law.

Government amendment 5 will change the coverage of college student unions, often called junior and middle common rooms. It makes it clear that the Bill does cover the activities of JCRs and MCRs, thereby clarifying the position.

Government amendment 11 will make it clear that the OfS is not required to make a decision as to the extent to which a free speech complainant is justified if that complaint is then withdrawn. Government amendments 12 and 15 set out how publication under the scheme will work in relation to the more general publication provisions recently inserted into the Higher Education and Research Act 2017 by the Skills and Post-16 Education Act 2022. In particular, the Bill provides for absolute privilege against defamation claims arising from publication of OfS’s decisions under the complaints scheme, whereas the general provisions give qualified privilege to other publications. The absolute privilege matches the approach taken by Parliament to the complaints scheme run by the Office of the Independent Adjudicator for Higher Education.

Government amendments 1, 2 and 16 will remove the express limitation on the definition of academic freedom that it covers only matters within an academic’s field of expertise. Once again, the Government have listened carefully to Members who raised issues in Committee, including my hon. Friend the Member for Congleton and my right hon. Friend the Member for South Holland and The Deepings.

The Bill marks the Government delivering on our manifesto pledge, while listening and strengthening the Bill throughout.

--- Later in debate ---
I want to turn briefly to new clause 5. It would introduce a sunset clause to the Bill, ensuring that it expired after three years, and provides for clauses to be removed if they are not working. The new clause does not deny the importance of freedom of speech or academic freedom, or our commitment on this side of the House to both. It addresses the flimsy evidence base underpinning the Bill. Last week at the Higher Education Policy Institute annual conference, the Minister struggled to provide concrete evidence to show that there was a freedom of speech crisis in our universities, other than anecdotes and what she believed to be true.
Michelle Donelan Portrait Michelle Donelan
- Hansard - - - Excerpts

You were not even there.

Matt Western Portrait Matt Western
- Hansard - - - Excerpts

I read every word. I read them with interest.

Only last week, the HEPI student academic experience survey revealed that a majority of students—64%—either agreed or agreed strongly with the statement:

“I feel comfortable expressing my viewpoint, even if my peers do not agree with me”.

Only 14% disagreed.

--- Later in debate ---
Miriam Cates Portrait Miriam Cates
- Hansard - - - Excerpts

I am very sorry to hear it. The hon. Lady absolutely should not be. What I am trying to say is that this is a much wider issue than the particular incidents that have made the headlines, and some deeper culture changes need to take place. That will take time, and we need to do a lot in schools as well.

I very much support the Bill. Hopefully it can narrow the divide that we see in society. I very much support the Government amendments, which will do a lot to protect freedom of speech.

Michelle Donelan Portrait Michelle Donelan
- View Speech - Hansard - - - Excerpts

With the leave of the House, I will speak on the non-Government amendments. New clause 1 seeks to improve transparency, especially in relation to foreign donations, and new clause 3 would place a duty on higher education providers as part of the promote duty to report information about foreign language, culture and exchange programmes and courses to the Office for Students and the Secretary of State. The Secretary of State would then be empowered to direct them to terminate the partnership or offer an equivalent if there were concerns about freedom of speech.

My hon. Friends are absolutely right to promote the importance of transparency of overseas financial arrangements, and we agree, which is why Government new clause 2 addresses those concerns. New clause 2 also requires the reporting of funding from certain overseas educational partnerships, including Confucius institutes, which addresses new clause 1 and the first part of new clause 3.

New clause 3 would have unintended consequences and place an unnecessary burden on the sector. Under new clause 2, there would be a financial threshold and countries such as NATO allies would be exempt. New clause 3 has no exemptions, which would mean that every single kind of partnership would be covered from the Turing scheme and third-year language students studying abroad with partner universities to important international research exchange programmes. The burden on providers to deal with that information would be disproportionate and would stifle the ability of our world-class universities to work with global partners on important research programmes.

The Government take the concern regarding foreign interference extremely seriously, however, which is why we developed a cross-Government programme of work to counter those threats, and we are continuing to work with providers to help them to understand the threats and respond. Government new clause 2 will help us to do that, and the Office for Students could utilise a range of enforcement powers to issue fines, close programmes such as Confucius institutes, or mandate universities to offer alternatives to students if that was necessary to secure free speech. As I said, however, new clause 3 would have unintended consequences.

Amendments 19 and 20 would provide that a non-disclosure or confidentiality agreement with the governing body of a provider did not mean that members, staff or students and visiting speakers could not speak freely. I stress that I fully support the spirit of this amendment; it is almost unimaginable to think of anything worse than suffering sexual assault and then being pressurised into being silent. I have been very vocal about the fact that our universities should never use NDAs to silence victims of sexual harassment, which is why I launched a pledge in January to end the use of NDAs. Some 66 universities are now signed up, 62 of which are in England, and three Oxford colleges.

We have a long way to go, which is why I am constantly talking to universities and working with Can’t Buy My Silence to call out those who have as yet failed to sign the pledge, but I know that a number will sign imminently. When it comes to the use of NDAs and sexual assault, the higher education sector has an opportunity to lead the way and show others what can be done.

We have also asked the Office for Students to impose a binding condition of registration on universities to ensure that they properly tackle sexual misconduct, which we intend to deal with that sort of behaviour. This would have teeth and it would mean that universities could be fined up to half a million pounds; they could even lose their degree-awarding powers. The ramifications would be big, and it would mean that the lawyers who developed those NDAs would be breaching the registration condition by doing so. We are the first Government who are prepared to tackle this issue, and I shall continue discussing with colleagues on both sides of the House all the ways in which we can tackle sexual harassment in universities, because that issue is very important to me and we will be doing more.

Amendment 17, which would widen the definition of academic freedom, is not necessary, because all the proposed new paragraphs are already covered by Government amendment 1, which will remove the requirement for academic freedom to be within an academic’s field of expertise. New clause 6 would add a new definition of academic staff, which I outlined in my opening speech.

New clause 7 and amendment 21 would change the definition of harassment in the Equality Act 2010 and under the Bill. I fully agree that there are occasions when universities have misapplied the Equality Act and have relied on it to wrongly shut down lawful free speech. There is both a subjective and an objective element as to whether harassment has taken place, and that should not be based on the views of just the complainant. Indeed, we saw a case last week where the University of Essex had to amend its policies following welcome pressure from the Free Speech Union. I assure hon. Members that once the Bill has passed, the new director of the Office for Students will ensure that providers are complying with the Equality Act as it is written, rather than overreaching.

John Hayes Portrait Sir John Hayes
- Hansard - - - Excerpts

I am grateful that my right hon. Friend is addressing the amendment that stands in my name and that of my hon. Friend the Member for Ipswich (Tom Hunt). Part of the problem is that universities are drawing up policies for dealing with complaints about free speech and its protection that are themselves faulty; they are often based on advice from individuals and organisations that have a skewed view about the relationship between free speech and the Equality Act. Will she look at those policies and their sources, and the advice that universities are receiving?

Michelle Donelan Portrait Michelle Donelan
- View Speech - Hansard - - - Excerpts

My right hon. Friend is correct. As I said, some universities have misinterpreted the Equality Act, which is why comprehensive guidance will be produced by the new director that will be the main source that they should refer to, rather than external agencies.

John McDonnell Portrait John McDonnell
- Hansard - - - Excerpts

On the point about advice, we are dealing with what has obviously become a contentious issue that often relies on subjective judgments. The advice that universities will take will come from the director for freedom of speech and academic freedom. Does it not behove the House to ensure that that person has the absolute confidence of those universities? New clause 4 simply says that that person will not be associated with a political party and will be appointed by an independent panel, and that a Select Committee will have a role in confirming that appointment. That will hopefully take the director who provides such sensitive advice out of the political melee and give universities more confidence in them.

Michelle Donelan Portrait Michelle Donelan
- Hansard - - - Excerpts

If the right hon. Gentleman will allow me, I will get to that point later; he may intervene again if he is not satisfied with the response.

Amendment 18 would require the Office for Students, when considering a complaint, to be mindful of the right of students to feel safe on campus, and of other legal duties such as those under the Equality Act 2010 and the Prevent duty. But the duty in the Bill to take “reasonably practicable” steps to secure freedom of speech and academic freedom will allow for relevant considerations to be taken into account. In particular, it will allow for other legal duties, such as those under the Equality Act and the Prevent duty, to be considered.

“Reasonably practicable” is a commonly understood term used across the statute book. It means that the relevant body can take into account all the other legal duties on a case by case basis. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that. As for the Office for Students, it will be required to take into account all the relevant facts. It would not be appropriate to try to set out all the considerations that it should take into account, so the Government do not support the amendment.

New clause 4 concerns the appointment of the director for freedom of speech and academic freedom to the board of the Office for Students. It relates to the appointee giving a donation to a political party, and it would require the appointment to be made by an independent advisory panel. We have in this country a robust public appointments process that, rightly, does not bar people who are members of political parties from serving in such roles.

The Commissioner for Public Appointments sets out that every year numerous public appointments are made of individuals who declare political activity, and in many years more appointees have declared an affiliation to the Labour party than to the Conservative party. This rule is such that, if applied generally, it would have prevented individuals such as Alan Milburn, Baroness Falkner and John Cope from serving.

On who will appoint the director, this will be carried out in the same way that the other members of the Office for Students board are appointed under the Higher Education and Research Act 2017—by the Secretary of State—and this will of course be done in accordance with the public appointments process. It would not be consistent to treat the director under this Bill differently. The Government therefore do not support this amendment.

John McDonnell Portrait John McDonnell
- Hansard - - - Excerpts

As this now goes to the other place, could I just ask the Minister to think again on that particular issue? This is an incredibly contentious area, and it requires someone who is above any form of suspicion of party political linkages. More importantly, it requires someone who has the confidence of an independent panel, but also, I believe, of one of our Select Committees. I urge her to think again, at least about the appointments process and the engagement of a confirmatory vote by a Select Committee on this critically important post, which I think is so important that the legislation will stand or fall on this appointment.

Michelle Donelan Portrait Michelle Donelan
- Hansard - - - Excerpts

I am a little taken aback by the comments of the right hon. Member, who refers to the relationship between political parties as suspicious—quite something given that we are all related to political parties. The Government will not be thinking again on that one.

New clause 5 would introduce a sunset clause, meaning that unless a report is made to Parliament and regulations are made, the legislation would expire three years after the date of enactment, and it would give Ministers the power to discontinue provisions in the Bill after one year. The fact that the Opposition have tabled this amendment demonstrates very clearly that, whatever they say, Labour Members do not support free speech. They have consistently opposed the need for this Bill despite the very clear evidence, and they now are seeking to dismantle it before it has even started. The Government wholeheartedly oppose this amendment, and we will never falter in our determination to safeguard free speech.

With the assurances I have given, I hope Members will not press their amendments to a vote, and I commend this Bill to the House.

Question put and agreed to.

New clause 2 accordingly read a Second time, and added to the Bill.

New Clause 4

Appointment of the Director for Freedom of Speech and Academic Freedom

“(1) A person may not be appointed as the Director for Freedom of Speech and Academic Freedom (‘Director’) if the person has at any time within the last three years made a donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.

(2) The person appointed as the Director may not whilst in office make any donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.

(3) The appointment for the Director shall be made by an independent advisory panel to be established by regulations made by the Secretary of State.

(4) The appointment of the Director for Freedom of Speech and Academic Freedom shall be subject to a confirmatory resolution of the relevant Select Committee of the House of Commons.

(5) A statutory instrument containing regulations under subsection (3) may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”—(Matt Western.)

This new clause would ensure that the Director of Freedom of Speech and Academic Freedom has not and cannot whilst in office donate to a political party and ensure they are only appointed subject to confirmation of an independent advisory panel, the Select Committee of the House of Commons and a resolution of each House of Parliament.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

--- Later in debate ---
19:52

Division 11

Ayes: 150

Noes: 282

Clause 1
--- Later in debate ---
20:06

Division 12

Ayes: 152

Noes: 284

Amendments made: 2, page 2, line 28, leave out
--- Later in debate ---
Michelle Donelan Portrait Michelle Donelan
- Hansard - - - Excerpts

I beg to move, That the Bill be now read the Third time.

I would like to take the opportunity to acknowledge all who have contributed to the Bill’s passage. The nature of the problem and the intensity of those opposed to academic freedom has made even acknowledging the issue an incredibly brave act in many cases. I thank the many right hon. and hon. Members who have raised the issue and contributed to the discussion over the years. In particular, my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) and my hon. Friends the Members for Congleton (Fiona Bruce) and for Penistone and Stocksbridge (Miriam Cates) have played an important part in scrutinising and strengthening the Bill. I thank my right hon. Friends the Members for Hereford and South Herefordshire (Jesse Norman), for Harlow (Robert Halfon) and for Chingford and Woodford Green (Sir Iain Duncan Smith), my hon. Friend the Member for Rutland and Melton (Alicia Kearns) and others for raising the important subject of international donations transparency. I also thank the research institutes and think-tanks who have shone a spotlight on the scale of the problem, such as Policy Exchange, Legatum and the policy institute at King’s College London. Together with the support of the Russell Group, Universities UK and other sector organisations, we on the Government side have been able not only to understand the scale of the problem but to shape the solution.

I was personally moved by much of the oral evidence given in the Public Bill Committee, so I struggle to understand how the Opposition sat there, heard that and yet still failed to back this robust action. Individual academics, such as Professor Kathleen Stock, Professor Nigel Biggar and Dr Arif Ahmed, have also played a fundamental role, raising awareness of the problem and advocating for change, sometimes at significant cost to themselves.

Members from across the House made valuable contributions during the debate and during the passage of the Bill. Some, in fact, highlighted areas of good practice in our universities. Despite pressure to limit free speech, in April Reading University vice-chancellor Robert Van de Noort published a strong, principled defence of academic freedom and freedom of speech that echoed many of the issues the Bill intends to address. The University of Cambridge rightly rejected proposed guidelines that all opinions must conform to the requirement of being “respectful”. Frankly, that would have been absurd.

However, that type of good practice is not always representative of the sector. As just one example, the high rates of self-censorship that numerous surveys and studies have documented show that the problem is widespread. The very nature of self-censorship means that the actual rates are likely to be much higher than reported. Students arriving at university today join an environment where one in four of their peers believe physical violence is justified to shut down views they deem to be hateful. We see that some are too ready to levy the charge of “hateful” at any view they disagree with. Staff are teaching at universities at a time when 200 of their colleagues recently reported receiving death threats and abuse with no support from their universities.

The UK has become the only country in the top tier of academically free countries to be significantly downgraded by the Academic Freedom Index. We are now ranked 63rd in the world. This is at a time when a university professor expressed lawful opinions and ended up needing police protection to visit a university campus. That is the culture that has been embedded in too many of our universities. It is not about lawful, peaceful protest, which of course should be celebrated; it is about a culture in which a small number of students and academics believe they have the right to act with impunity to harass, intimidate and threaten those whose views they disagree with until they are silenced and driven out. Again and again we have seen that occurring, while university authorities stand by and do nothing. No individual should have to fear for their personal safety, or rely on the good will of their colleagues to go about their job safely.

We will not let that continue, so we are taking action and delivering on our manifesto commitment, unlike the Opposition who continue to bury their heads in the sand. Madam Deputy Speaker, indulge me for a moment. Let me remind Opposition Members of some of the comments they have made during the passage of the Bill. One said there was:

“no evidence…of a free speech crisis”. —[Official Report, 12 July 2021; Vol. 699, c. 114.]

Others said it was

“tackling a problem that does not really exist.”—[Official Report, 12 July 2021; Vol. 699, c. 106.]

and that the legislation is “not necessary” and “manufacturing a problem”. Even the shadow higher education Minister called this a “virtually non-existent problem”. But I fail to believe that the Opposition do not recognise the wealth of evidence that they, too, have heard and seen. It is time that they were honest: they are simply anti-free speech.

This Government will always stand up for free speech, which is why our Bill confirms that it is not acceptable for students, staff or visiting speakers to fear repercussions for exercising their right to lawful freedom of speech and academic freedom. The Bill will also ensure that individuals have routes to redress if their rights are not secured due to breaches of the duties placed on higher education providers and student unions. Under the existing legislative framework, those clear routes of redress do not exist. They are essential to ensure that freedom of speech and academic freedom are protected to the fullest extent. The Bill is about changing the wider culture on university campuses so that everyone has an equal right to be heard and peacefully challenged. That should be done with tolerance of different opinions and in a constructive way. It does not grant any protection to unlawful speech.

Whether some Members realise it or not, change is needed. As we have seen historically on issues such as gender equality, race discrimination and human rights, such cultural change occurs more readily when backed up by appropriate legislation. At present, we have a duty without proper means of enforcement. The Bill is therefore a vital piece of legislation that will lead to the cultural change necessary to tackle the issue at the core. I therefore challenge the Opposition to show the world of higher education that we value freedom of expression the same as we value it here in this place, and to be on the right side of history—the side that stands for free expression, free speech and academic freedom. I commend the Bill to the House.

Higher Education (Freedom of Speech) Bill

(Limited Text - Ministerial Extracts only)

Read Full debate

This text is a record of ministerial contributions to a debate held as part of the Higher Education (Freedom of Speech) Act 2023 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Moved by
Earl Howe Portrait Earl Howe
- Hansard - - - Excerpts

That the Bill be now read a second time.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords,

“If liberty means anything at all it means the right to tell people what they do not want to hear.”


George Orwell’s words from 1945 remain just as apposite today. I hope and believe that we are all in agreement that freedom of speech—the right to voice one’s opinion without fear of repercussion—is vital to the proper functioning of a democratic society. This principle is surely no less important in a university setting. Free speech is the lifeblood of a university, allowing students and teachers to explore a spectrum of views, engage in robust debate and pursue their quest for knowledge.

The phrase “world class” is sometimes overused, but our higher education is world class, and it would not be wrong to equate much of its success to the value we place on free speech in this country. You need only look to some of our most influential historical figures to understand how free speech can influence the course of history. Let us not forget that the views of trailblazers such as Emmeline Pankhurst and Mary Wollstonecraft were first dismissed and ridiculed, but their willingness to stand up and argue for what they believed in ultimately secured women the right to vote.

Both students and academics arrive at our universities expecting to be challenged. Yet, we know that fear of censure is increasing and this is having a chilling effect on discourse and debate. There is a growing body of evidence to bear this out: the proportion of students who believe that universities are becoming less tolerant of a wide range of viewpoints has risen to 38%; this figure stood at 24% in 2016. Here, I thank my noble friend Lord Johnson who, as Universities Minister, was one of the first to raise concerns on this important matter, including in his landmark speech at the Limmud conference in December 2017.

I firmly believe that we must address these issues and that the Bill before us is the best way to do so. By way of an example—which happens to be the freshest in my mind—the experience of my right honourable friend the Secretary of State for Education at the University of Warwick highlights that, even if we do not agree with views expressed by others, it does not mean that we have the right to silence them. A student firmly interrogated the Secretary of State’s statement on trans rights. Their views differed greatly but, as the Secretary of State said, the student’s

“right to free speech is vital too”.

Areas of disagreement do not always have to be met with hostility; there is scope to agreeably disagree. I am looking forward to hearing the views of noble Lords during today’s debate, and I thank those who have come to contribute to it.

The Bill will protect lawful freedom of speech and academic freedom on campus. The measures will strengthen existing legislation and address gaps in existing law. As I shall explain, these are very much active measures, not just a means to address a problem once a breach of the duties has taken place. New duties will be placed on higher education providers and constituent colleges to take “reasonably practicable” steps to secure freedom of speech within the law for staff, members, students and visiting speakers. They will be duty bound to pay particular attention to the importance of free speech when taking these steps. Importantly, these duties also, for the first time, clearly extend to “academic freedom”.

In a new measure, the Bill will require providers and constituent colleges to promote the importance of freedom of speech and academic freedom. The Office for Students will be bound by a similar duty. Furthermore, higher education providers and their constituent colleges must develop and publish a code of practice, which must include an overarching statement of the values and procedures they will uphold, and which they must bring to the attention of their students at least once a year.

Student unions are at the heart of many students’ university experience; they offer a distinct space for students to come together and engage in areas particularly close to their heart. This legislation, therefore, contains duties that apply specifically to student unions at approved fee cap providers, which is the majority of registered higher education providers. Like higher education providers and constituent colleges, under this legislation they must take steps to secure lawful freedom of speech. Similarly, they must publish their own code of practice.

At present, there are no effective means of enforcing the current law if higher education providers are in breach of it. This may explain some individuals’ hesitancy to express their views. To address this, the Bill creates a new statutory tort for breach of specified freedom of speech duties by providers, constituent colleges and student unions. This will enable individuals to seek legal redress for the loss they have suffered as a result of a breach.

The higher education sector will play a leading role in delivering the ambitions of this legislation, but the regulator also has an important part to play. The Bill gives new powers to the Office for Students, which will identify best practice and provide guidance on how to secure and promote free speech. The Office for Students will be required to impose mandatory registration conditions on providers relating to freedom of speech and academic freedom, as well as monitoring the compliance of student unions with their freedom of speech duties. As with the lack of an enforcement mechanism, there is currently no specific route for all those who might be affected to lodge complaints relating to freedom of speech. The Bill creates a requirement for the Office for Students to provide a complaints scheme that will provide a right of redress for students, members, staff and visiting speakers. This scheme will be overseen by the Director for Freedom of Speech and Academic Freedom, a new position on the Office for Students board. These measures will enhance the strengthened freedom of speech duties and encourage compliance.

On Report in the other place, my colleagues introduced several minor and clarificatory amendments. Two substantial amendments were also tabled. The first creates a duty for providers, constituent colleges and student unions not to pass on security costs associated with free speech events to the organisers, unless there are exceptional circumstances. The second was an amendment on “overseas funding”: this creates a duty for the Office for Students to monitor overseas funding received by higher education providers, their constituent institutions and student unions. This will enable them to assess the extent to which the funding presents a risk to freedom of speech and academic freedom.

I finish by emphasising that the Bill is not about allowing unlawful speech. The right to freedom of speech is not an absolute right and it does not include the right to harass others or incite them to violence or terrorism. This is definitely not a licence to break the law. The Bill is about encouraging varied and thoughtful debate, so that future generations develop the ability to think critically, challenge extreme narratives and put forward new—and sometimes controversial—ideas. I firmly believe that these are essential skills in a modern, forward-facing society. I look forward to the debate ahead of us today and beg to move.

--- Later in debate ---
Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, this has been a memorably good debate. I thank all speakers for the knowledge and personal insights that they brought to it. I am grateful particularly to those noble Lords who felt able to give the Bill a broad welcome and I look forward to their constructive support as it proceeds.

As we heard, by no means all who have spoken were so positive. Some, such as the noble Lords, Lord Wallace of Saltaire and Lord Collins, the noble Baronesses, Lady Thornton and Lady Royall, and my noble friend Lord Willetts are clearly very troubled by the Bill. So it is perhaps appropriate for me to start by addressing some of the deeper-rooted concerns that were expressed.

From the noble Lords, Lord Wallace and Lord Collins, the noble Baroness, Lady Garden, and others, we heard genuine concern that there is no substantive problem to be addressed and that any chilling effect or cases of no-platforming are being exaggerated, possibly even for political reasons. I understand these concerns, but let me try to allay them. The reality is that one needs look no further than the available data and information from the higher education sector itself to see that there is a problem.

In October last year, 200 academics wrote to the Times to report that they had received death threats and abuse simply for expressing views. They did not feel supported by their universities. One of those academics had expressed an opinion about the need to protect women-only spaces, such as refuges, prisons and hospital wards. However, this brought her into conflict with students and staff, who saw her opinions as transphobic. It also caused her to be compared to eugenicists and white supremacists, in addition to being called a bigot. This is just one case among those 200 staff who wrote to the Times.

Several studies, surveys and reports highlight instances in which freedom of speech and academic freedom are being curtailed in the higher education sector. A 2019 King’s College London report showed that 26% of students think violence can be justified in preventing someone espousing hateful views. A similar proportion reported not feeling free to express their views at university for fear of disagreeing with their peers.

There are also high-profile cases in which academics have been harassed for expressing perfectly lawful views. The noble Lord, Lord Macdonald, cited the case of Professor Kathleen Stock, who resigned from her post at the University of Sussex due to fears over her personal safety after harassment from students. There are many similar examples. Professor Rosa Freedman’s door at the University of Reading was drenched in urine. At Oxford a left-wing feminist academic, Selina Todd, had to be given security guards after threats to her safety. Raquel Rosario Sánchez, a PhD student at the University of Bristol, was subjected to a campaign of intimidation by trans activists after agreeing to chair an event, held by Woman’s Place UK, called A Woman’s Place is Speaking Out. I could go on.

There is without doubt a problem with the suppression of free speech on university campuses. I want to be very clear: it is not confined to either the right or the left of political opinion. This leads me on to my next point, which is to address concerns that the introduction of the Bill is politically motivated. Students and academics from across the political spectrum have been impacted by the censure of free speech on campuses. From those on the left to those on the right, there is a real fear about airing what might be controversial opinions. The Bill is designed to protect free speech on a diverse range of topics, including minority ones. Freedom of speech and academic freedom are fundamental principles in higher education. This is not about promoting and protecting one political view over another.

I will clarify a further point, prompted by the noble Baronesses, Lady D’Souza and Lady Garden, and mentioned by the noble Baroness, Lady Fox. The Bill is not just about eradicating no platform. It is about creating a wider culture on campus, such that everyone feels able to express their views and challenge those of others, even when those views are unpopular or controversial, and to do so without fear of negative consequences. Everyone needs to be aware that when things do not go as they should, there is a meaningful route of redress for individuals.

The noble Baroness, Lady D’Souza, followed that up by asking: does this not need cultural change, not just legislation? Absolutely, yes. This needs cultural change, and we welcome initiatives by universities, academics and students to do all they can to move in that direction. But as we have seen historically on issues such as gender equality, race discrimination and human rights, cultural change occurs more readily when backed by appropriate legislation.

I turn now to an issue that has given rise to a number of expressions of concern. I listened carefully to noble Lords such as the right reverend Prelate the Bishop of Coventry, my noble friend Lord Willetts and the noble Baroness, Lady Shafik, who are worried that the creation of a new tort, as proposed in Clause 4, may lead unintentionally to a deluge of court cases initiated by vexatious, publicity-seeking pressure groups. Nobody, least of all the Government, wishes to see universities burdened in this way. It may be helpful if I explain why I do not think the scenario that some noble Lords envisage is at all likely.

To succeed with a civil claim, a claimant would need to be able to show that a provider, college or student union owes them a duty of care; the category of those potentially owed a duty of care under the Bill is narrowly defined. They would then need to point to a genuine and material loss they had suffered as a result of a breach of the freedom of speech duties. Those tests are not a low bar, and any claimant who pursued their case vexatiously would certainly struggle to prove it. In the background, of course, a vexatious claimant would be assuming a considerable financial risk, not only in the form of their own legal costs but by being potentially liable for those of the defendant. That is why we believe the tort will be resorted to very much as a backstop. The availability of the free complaints scheme through the Office for Students, which will provide a much easier and more straightforward route to redress, should make litigation unnecessary and therefore unlikely in the vast majority of circumstances.

Setting aside for a moment the concerns around the tort, the noble Lords, Lord Wallace and Lord Storey, and the noble Baroness, Lady Royall, expressed a worry that the wider provisions of the Bill would impact on higher education institutions in terms of administrative burdens. I am the first to agree that unnecessary bureaucracy directly impacts on how well higher education providers can do their job; every pound spent on unnecessary bureaucracy is a pound less that is being spent on teaching and research. However, I am also convinced that if straightforward measures can be put in place to protect our core UK values, it is right and necessary that we do so. We have ensured that their scope is proportionate to the risk. To pick up a point made by the right reverend Prelate, we sincerely hope that providers and student unions will embrace the mission to generate rigorous and healthy debate on campus, understanding how vital it is to academia and our country’s democracy.

I turn to the proposal in the Bill to create a new post in the Office for Students: the director for freedom of speech and academic freedom. The noble Baronesses, Lady Thornton and Lady Royall, and the noble Lords, Lord Storey, Lord Wallace and Lord Collins, asked several questions about the appointment of this individual. As has been mentioned, the role was advertised publicly from 13 June 2022. To allay the doubts expressed on that score by the noble Baroness, Lady Thornton, and the noble Lord, Lord Collins, I can reassure them that the Government can undertake preparatory actions in anticipation of full implementation following Royal Assent.

Worries were expressed about bias in the appointments process. Freedom of speech and academic freedom are fundamental principles in higher education, not the preserve of one particular political view. The director for freedom of speech and academic freedom will be appointed in the same way that other members of the OfS are appointed, under the Higher Education and Research Act 2017 by the Secretary of State, and this will be done in the usual way in accordance with the public appointments process.

My noble friend Lord Willetts, who I am sorry to see is not in his place, asked why we need the regulatory route as well as the tort. As he is not here, I will write to him about that and copy the answer to other noble Lords.

The noble Baroness, Lady Royall, argued that the Bill establishes the possibility of simultaneous penalties. It is already possible for there to be a complaint through the Office of the Independent Adjudicator for Higher Education and regulatory action at the same time. The Bill does not change that. These actions perform different functions, with the complaint having the potential to provide the individual with redress but with regulation intended to ensure that provider behaviour as a whole meets its registration conditions using a proportionate approach based on risk.

The noble Baroness, Lady Deech, asked what the difference will be between the Office for Students complaints scheme and the complaints scheme operated by the OIA. While the Office of the Independent Adjudicator for Higher Education will remain the body for general student complaints about providers, the OfS scheme will focus exclusively on freedom of speech and academic freedom. The OfS will offer a complaints scheme for staff and visiting speakers who cannot complain to the OIA, as well as for complaints about student unions also not covered by the OIA scheme. All those who consider that they have suffered because of a breach of the new duties will have access to the OfS scheme, including students.

On a point raised by the noble Baroness, Lady Thornton, and the noble Lord, Lord Stevens, I make it clear that it will be for the OfS to make decisions, not the director personally. It is not unusual for a regulator to be able to consider legal matters when making decisions; for example, the Charity Commission already does this in relation to charity law. It is also common practice for out-of-court redress schemes to consider legal issues when making decisions around a recommendation of redress. If alternative dispute resolution bodies could not consider legal issues, they would not be able to fulfil their functions. For example, the Office of the Independent Adjudicator for Higher Education does this.

Returning to the issue of political bias—I draw this to the attention of the noble Lord, Lord Wallace—it is important to note that the chilling effect on free speech appears to increase when political views are expressed. Studies confirm that this affects people from across the political spectrum. Policy Exchange polling shows that 15% of those identifying as centre or left are choosing to self-censor. The Government are clear that freedom of speech is not about promoting and protecting one political view over another.

The noble Lord, Lord Sikka, asked how providers are supposed to know what speech is unlawful. The Bill does not change the legal position in this country on what speech is lawful and what is unlawful. It will be for providers, constituent colleges and student unions to determine the lawfulness of speech by considering it in the light of the provisions of criminal law, such as the Public Order Act 1986 and legislation such as the Equality Act 2010. That is no different from the process that they must go through already.

My noble friend Lord Willetts asked whether the Bill was designed to protect all legal speech. Once again, as he is not here, I will write to him about that and copy my answer to other noble Lords. However, I say to the noble Lord, Lord Stevens, that there is nothing in the Bill that encourages higher education providers or student unions to encourage baseless and harmful claims or bad science on campus.

Certain noble Lords suggested that the Government were presenting a confused picture to universities on such matters as anti-Semitism. The example of the IHRA definition of anti-Semitism, also referred to by the noble Baroness, Lady Deech, was mentioned. First, it is up to providers as independent and autonomous organisations to decide on whether to adopt the International Holocaust Remembrance Alliance definition of anti-Semitism. Secondly, the Government do not see a conflict between protecting freedom of speech and adopting the IHRA definition. I believe the Bill strengthens protections for freedom of speech likely to support Jewish students and staff, who, on a number of occasions, have had their speech shut down by others. However, the Government recognise that the adoption of the definition is necessary but not sufficient, and there is more that providers need to do to make sure that instances of anti-Semitism on campus are not tolerated.

I shall comment briefly on the Prevent duty, mentioned by a number of noble Lords, including the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Macdonald. The Government are clear that the Prevent duty should not be used to suppress freedom of speech. The duty requires providers and constituent colleges, when exercising their functions, to have due regard to the need to prevent people being drawn into terrorism. The legislation imposing the Prevent duty in relation to higher education specifically requires that providers must have particular regard to the duty to ensure freedom of speech and to the importance of academic freedom.

A number of speakers, including the noble Baroness, Lady Deech, referred to the vexed issue of Holocaust denial. I wish to be very clear on this point: any attempt to deny the scale or occurrence of the Holocaust is morally reprehensible and has no basis in fact. In many cases, those who deny the Holocaust also have links to neo-Nazi extremism, anti-Semitic violence and intimidation. The European Court of Human Rights has held that Holocaust denial is not protected speech under Article 10 of the European Convention on Human Rights, and our legislation does not change that. For the avoidance of any doubt, this legislation will not protect those who deny the Holocaust.

The noble Baroness, Lady Chakrabarti, asked about the Bill of Rights and specifically how that Bill and its amendments to Section 12 of the Human Rights Act will affect this Bill. The proposals to strengthen freedom of expression through reforms to the Human Rights Act complement the creation of this tort, which is seeking to give greater protection to free speech as well. If anything, the MoJ proposals only bolster the requirement that universities take steps to ensure free speech.

As a general comment, and in answer to those who have asked how the new duty fits with other legal duties a provider, college or student union may have under the Equality Act or criminal law, the duty to take “reasonably practicable” steps means that providers, colleges and student unions can take account of all their legal duties on a case-by-case basis. If another legal duty requires or gives rise to a certain action, it would not be “reasonably practicable” to override that.

My noble friend Lord Strathcarron was worried about the potential clash between this Bill and the Online Safety Bill. It is perhaps a debate for Committee, but I shall seek to persuade my noble friend that there is no conflict between that Bill and the one before us.

The noble Baroness, Lady Royall, raised the issue of overseas funding and asked why the OfS will ask for information about this pre-emptively. We are ensuring that the scope of the new reporting requirement on overseas funding is proportionate to the risk. We recognise the importance of protecting commercial sensitivities so that the sector does not fall behind its competitors in the rest of the world. We must ensure that the Office for Students has the information at its disposal to enable it to better understand the possible extent of influence from a foreign source at a country level. The reasons for that were well articulated by my noble friend Lord Moore.

My noble friend Lord Johnson, the noble Baroness, Lady Shafik, and the noble Lord, Lord Storey, questioned the level of the proposed threshold for reporting the receipt of overseas funds by a university and argued that the threshold should be higher than £75,000, which is the currently intended level. For now, I have listened carefully to the points they made. The Government have struck what they consider to be the right balance, but this is a matter to be determined in regulations, so there will be ample time to discuss it further.

In answer to the noble Baroness, Lady Chakrabarti, who asked what criteria will determine what overseas funding is acceptable, we continue to welcome foreign investment and donations to higher education as they are a key part of supporting innovation and development within our universities. Through the Bill, we are simply trying to implement measures that help to safeguard our world-leading higher education sector from those who may wish to interfere with our values. I would be happy to meet the noble Lord, Lord Storey, and other noble Lords to discuss these issues.

Time is now against me, as I have just been rightly reminded. I shall write to noble Lords whose questions I have not had time to address, including my noble friend Lord Eccles and the noble Baroness, Lady Hoey, who asked me why the Bill does not cover the rest of the UK. I thank all speakers for their contributions once again. I hope that my responses provided some useful clarification in response to the thoughtful points and questions that noble Lords raised.

Freedom of speech in our universities is under threat: unfortunately, a growing trend aims to prevent anyone from airing ideas that some groups may disagree with or find offensive, and we cannot ignore that. Hence, today, I have set out how the Bill will ensure that freedom of speech is both protected and promoted in higher education. It will strengthen existing freedom of speech duties and directly address gaps in the existing law, introducing clear consequences for breaches of the duties. Therefore, I take pleasure in commending the Bill to the House.

Bill read a second time and committed to a Grand Committee.

Higher Education (Freedom of Speech) Bill

(Limited Text - Ministerial Extracts only)

Read Full debate
Committee stage
Monday 31st October 2022

(2 years ago)

Grand Committee
Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Amendment Paper: HL Bill 30-II Second marshalled list for Grand Committee - (31 Oct 2022)

This text is a record of ministerial contributions to a debate held as part of the Higher Education (Freedom of Speech) Act 2023 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

I conclude with this point. Protecting academic freedom goes beyond partisan political lines. It provides a solid basis on which academics can feel secure enough to test and challenge the perceived wisdom. No matter how much we disagree on some of the issues—my noble friend Lord Hunt and I have disagreed on some of them—we are at one on protecting the principle of free speech and how we change the culture. As a trade unionist, I come back to that basic point. Codes of practice and understanding responsibilities are the most important things. I hope that, in our debates on the Bill as we go through each clause, we will have that uppermost in our minds.
Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, we have begun our debates in Grand Committee with a group of amendments all of which, in one way or another, address the main duties in the Bill relating to freedom of speech.

Amendment 1, introduced by the noble Baroness, Lady Smith of Newnham, would add the words “within the law” and is intended, as she explained, to ensure that the reference to the importance of freedom of speech in new Section A1 is identical to that within new Section A3. Let me straight away assure her that the speech protected by the Bill is only speech that is within the law.

The duty in new Section A1 to have particular regard to the importance of freedom of speech is part of the duty to take reasonably practicable steps to secure freedom of speech within the law. It emphasises the significance of freedom of speech as a concept and ideal, but a provider needs only to take reasonably practicable steps to secure freedom of speech if that speech is within the law. So the reference to freedom of speech within the context of the duty to have particular regard does not need the narrowing descriptor of “within the law”.

This is different from the duty in new Section A3, under which a provider must promote the importance of freedom of speech within the law. The duty to promote is about encouraging a culture of free and open discussion on campus. In this context, the importance of freedom of speech does need the narrowing descriptor of “within the law”.

Amendment 2 seeks to make clear in the Bill that freedom of speech in the Bill is an aspect of freedom of expression under Article 10 of the European Convention on Human Rights. I listened with great care to the noble and learned Lord, Lord Hope, and those who spoke in support of what he said. Amendments 3 and 28 also propose definitions of freedom of speech. Amendment 36 seeks to prevent freedom of speech being used as a defence against behaviour which amounts to harassment under the Equality Act.

Freedom of speech is a term that has been used in domestic legislation in a higher education context since the Education (No. 2) Act 1986. It is well understood in that context and there is no intention to change its meaning in this Bill. It is important to note, for example, that it covers both verbal speech and written material, including in electronic form. Accordingly, freedom of speech is a broad concept, and is indeed protected under Article 10 of the ECHR as an aspect of freedom of expression. It is worth adding that Article 10 includes the freedom to receive information from other people by, for example, being part of an audience or reading a magazine, which this Bill does not cover.

There is, in fact, already a non-exhaustive definition of freedom of speech in new Section A1(11), which provides that

“references to freedom of speech include the freedom to express ideas, beliefs and views without suffering adverse consequences”.

We did not consider it necessary to include in this definition a reference to Article 10. The Human Rights Act requires that, so far as possible, legislation

“must be read and given effect in a way which is compatible with”

the rights under the ECHR. We are clear that the Bill is entirely consistent with that requirement.

The activities mentioned in Amendment 3—teaching, researching, engaging in intellectual inquiry, contributing to public debate and criticising any institution—are all covered by the concept of free speech as just described. However, affiliation to an institution and being a member of a trade union body are not per se matters of speech and so are not covered by a Bill that is about speech.

As regards Holocaust denial, referred to in Amendments 3 and 28, let me make clear that any attempt to deny the scale or occurrence of the Holocaust is morally reprehensible and has no basis in fact. In many cases, those who deny the Holocaust also have links to neo-Nazi extremism, anti-Semitic violence and intimidation. The European Court of Human Rights has held that Holocaust denial is not protected speech under Article 10 of the ECHR, as such speech is intolerable in a democratic society, and that Holocaust denial, even if dressed up as impartial historical research, must be seen as connoting an anti-democratic ideology and anti-Semitism.

There is no place in universities for extremist views that masquerade as facts but are in fact complete fiction and are deeply offensive. We certainly do not encourage higher education providers, constituent colleges or student unions to invite individuals who deny that the Holocaust ever happened to speak on campus. However, I should note that it is not the intention of the Bill to change what speech is held to be lawful or unlawful.

I turn to other aspects of my noble friend Lord Moylan’s amendment. It is not necessary to specify that speech that is unlawful, whether because it is in breach of a legal duty, a confidentiality agreement or intellectual property rights, is not included. Finally, on the element of Amendment 28 relating to the Equality Act, and also Amendment 36, it is important to note that, when considering a claim of harassment, courts and tribunals must balance competing rights on the facts of a particular case, which could include the rights of freedom of expression, as set out in Article 10 of the ECHR, and academic freedom, as set out in the Explanatory Notes to that Act. Guidance has specifically made clear that the harassment provisions cannot be used to undermine academic freedom.

Amendments 9, 10, 27 and 42 are designed to probe the meaning of “beliefs”. As I mentioned earlier, new Section A1(11) has a definition of freedom of speech which includes

“the freedom to express ideas, beliefs and views without suffering adverse consequences”.

This builds on the current wording of the Education (No. 2) Act 1986. It is vital that students, members, staff and visiting speakers can speak freely on campus about their beliefs, without damaging their prospects or suffering other repercussions. Beliefs are not the same as views.

--- Later in debate ---
Lord Grabiner Portrait Lord Grabiner (CB)
- Hansard - - - Excerpts

I am sorry to interrupt, but the Minister said a couple of times that subsection (11) is a definition of freedom of speech. I respectfully suggest that it is no such thing; it simply says that

“references to freedom of speech include the freedom to express ideas”,

and so on. It is not a definition at all. It merely gives an example of what freedom of speech would be. The point about the amendment tabled by the noble and learned Lord, Lord Hope, in particular is that it requires the introduction of a definition into the Bill, not simply the provision of an example of what freedom of speech might consist of. I suggest that a definition is essential, otherwise you will simply be scrabbling around to see what somebody thought freedom of speech might have meant in 1986. We have a perfectly excellent definition in the human rights legislation and the convention, and I am not quite sure why there is such a determination to avoid the obvious, so to speak.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I take the noble Lord’s point entirely. I think that I said that the definition I referred to was non-exhaustive. It is quite deliberately non-exhaustive, because it is a definition that we felt was appropriate for the purposes of the Bill. I suppose I could sum up the issue by saying that we believe there is a consistency between the Bill and the ECHR, even if there is not total congruency.

I emphasise that the duty in the Bill to take reasonably practicable steps means that providers, colleges and student unions can take account of all their legal duties on a case-by-case basis. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that.

Amendment 11 would provide that a non-disclosure agreement with a provider does not mean that members, staff, students or visiting speakers could not speak freely. There is an exception for intellectual property. I very much support the spirit of this amendment—in particular, victims of sexual misconduct and harassment should never be pressurised into keeping silent. The previous Minister for Higher Education, Michelle Donelan, strongly supported work in this area. She launched a voluntary pledge in January this year, in conjunction with Can’t Buy My Silence and universities, to encourage providers to commit not to using NDAs to silence victims of complaints of sexual harassment, abuse or misconduct, and other forms of harassment and bullying. To date, 74 higher education institutions and three Oxford colleges have signed up to this. The Government are working with Can’t Buy My Silence to call out those who have not yet done so.

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
- Hansard - - - Excerpts

Does the noble Earl not think that that is a good example of where good practice can be adopted not by legislation but by employers agreeing that something is not appropriate? Can he not proudly point to that as somewhere the Government have intervened and change has happened without the need for legislation?

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

We certainly hope that this will gain traction. I agree that in most circumstances it is better to encourage voluntary action, as long as it works. This is very much a work in progress.

We have also asked the Office for Students to create a new registration condition to ensure that it properly tackles sexual misconduct. This would have real teeth and would mean that providers could be sanctioned with penalties, suspension from the register or even deregistration. This follows the publication by the OfS of a statement of expectations for providers in this area.

I make the point that we are the first Government who are prepared to tackle this issue. I shall continue discussing with colleagues on both sides of the House how best we can tackle sexual harassment and misconduct in our universities. I therefore have no difficulty in committing to taking this matter away and looking at it further.

Lord Moylan Portrait Lord Moylan (Con)
- Hansard - - - Excerpts

Does my noble friend wish to expand at all on my Amendment 13 about “reasonably practicable”? The essential point is that there is an existing duty in the 1986 Act that has two parts to it to take reasonably practicable steps to secure freedom of speech. If my noble friend’s position is that neither the definition of freedom of speech nor the definition of what is reasonably practicable is to be amended, why is he not frank in saying that there is no intention to change the current duty?

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I apologise to the Committee. I know that I have been speaking for a long time, but this is the very issue that I was about to come on to next, if my noble friend will allow me.

Amendment 13, which is the amendment that my noble friend was referring to, seeks generally to strengthen the test for what is “reasonably practicable”. It would mean that, in relation to speech of a political, philosophical or academic nature, it would always be reasonably practicable not to interfere; in relation to other speech, it would be reasonably practicable only if taking that step would prejudice the functioning of the provider. I hope that I have paraphrased the issue correctly.

The Government’s position, supported by the OfS, is that we stand for the widest possible definition of free speech—anything within the law—and that, where debate is particularly contentious, it is all the more important that everyone feels able to put forward their views and arguments and be heard, on all sides.

The “reasonably practicable” wording of the main duty means that providers can take account of all their legal duties on a case-by-case basis. But I must be clear that my noble friend’s proposed strengthened test goes too far in not allowing providers to take account of all the relevant circumstances, including their other legal duties—for example, to prevent unlawful discrimination or harassment, or to comply with the Prevent duty so as to stop students and others being drawn into terrorism. There may be occasions where it is not reasonably practicable to secure freedom of speech of a political, philosophical or academic nature, even if that speech is lawful, and we must not impose a test that has so few exceptions.

If I might address the point made by the noble Lord, Lord Triesman, about conspiracy theories, the question of whether espousing a conspiracy theory is lawful depends on what is said. If it is defamatory, it would be unlawful. The point of the Bill is to take a wide approach to freedom of speech as a fundamental principle in a democratic society, but there is nothing in the Bill to encourage baseless or harmful claims, or bad science, on campus, for example.

Amendment 25 seeks to clarify the position regarding balancing the right to freedom of speech with the right to protest. The purpose of the Bill is to protect freedom of speech, but the right to peaceful protest is a fundamental tool of civic expression and will not be curtailed by this Government. Of course, it can itself be an aspect of freedom of speech. If there is a protest against a particular academic because they have said something controversial but lawful, providers will need to decide what reasonably practicable steps they can take to ensure that the academic can speak freely.

The intended effect of the Bill is not to prioritise one right under the ECHR—that is to say, freedom of expression under Article 10—over others, such as the right to protest under Article 11. The requirement to have “particular regard” to the importance of freedom of speech builds on existing provision under Section 43 of the Education (No. 2) Act 1986 and could, in a particular case, prompt a higher education provider to prioritise freedom of speech over another convention right. However, this would remain subject to its assessment of what is reasonably practicable and would need to be lawful.

It is worth noting that a provider’s code of practice under new Section A2 must include the procedures to be followed when organising meetings and activities, as well as the conduct required in connection with them. This will ensure that staff and students are aware of their responsibilities as regards their own conduct.

The noble Lord, Lord Hunt, suggested delaying Royal Assent to allow universities due time. Let me confirm to him now that implementation of the Bill will not be rushed. Various actions need to be taken before the new regime can come into force, including consultation with the sector and the provision of guidance, so providers, colleges and student unions will be fully engaged and able to understand their responsibilities under the Bill.

I turn next to Amendment 30 in the name of my noble friend Lord Sandhurst, which seeks to ensure that codes of practice have a process in place for dealing with meritless claims against staff and students. It is an important point that providers should not have to spend time and resources responding to frivolous or vexatious complaints. However, I should make it clear that the duties in the Bill are imposed on the governing body of registered higher education providers. There cannot be complaints made under the Bill about the freedom of speech duties against staff, members and students of the provider, or visiting speakers, as the amendment suggests. Higher education providers will in any case have their own procedures already in place for handling internal complaints. As for burdens on providers, unnecessary bureaucracy can take up time that could be spent focusing on the academic experience and high-quality teaching, but these measures are absolutely necessary to protect the core value of freedom of speech and we consider that the duties imposed are proportionate and appropriate.

I hope my remarks have provided noble Lords with reassurance about the Bill’s approach regarding the main duties set out in it and that they strike the right balance.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
- Hansard - - - Excerpts

My Lords, clearly, I have not quite been mandated by my noble friend to accept the noble Earl’s answer, but, given his answer, I shall beg leave to withdraw Amendment 1 and I suspect it will not need to come back on Report. The clarification on the other amendments associated with belief were very helpful, but that might be an area where further amendments are brought on Report. I beg leave to withdraw the amendment.

--- Later in debate ---
Baroness Thornton Portrait Baroness Thornton (Lab)
- Hansard - - - Excerpts

My Lords, this is a very important small group of amendments. It seems to me that the previous group was about what the law should say, while this debate has been about is who it is going to apply to. I was struck by my noble friend Lady Chakrabarti’s description of the academic who might suffer. I was thinking back and remembering, and I need to say that I am an emeritus governor of the LSE, but I think I am absolutely not a member of the academic staff there. When I was at the LSE, I attended a whole year of lectures and I fell asleep at every single one, but I do not think that counts with this.

I think the noble Lord, Lord Wallace, has been very clever in these two groups; his small amendments are exactly how you probe a Bill. I am full of admiration for his ability to do that, and I am grateful. The issue here has been mentioned by most noble Lords, because it is vital in legislation that we define who will be affected by the legislation and in what way. That is why my noble friend Lord Collins added his name to Amendment 26 in the name of the noble Lord, Lord Sandhurst. My noble friend Lord Triesman made some very good points, as did the noble Lord, Lord Stevens, and others. I think the Minister will need to continue the discussion on this because by now the Bill team and the Minister will realise that there is a lack of clarity here, which provides enormous risks to the effectiveness of this legislation.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, this second group of amendments relates to members and academics, as covered by the Bill, but I will also try to address the questions put to me on related issues.

Amendments 4, 37 and 57 in the name of the noble Lord, Lord Wallace, and spoken to by the noble Baroness, Lady Smith, seek to probe the meaning of the term “members” in the Bill. The term “member” in the sphere of higher education has a specific meaning as a term of art. It includes in particular a member of the governing council of a university and those with certain honorary positions, such as an emeritus professor. Such a person may not be a member of staff of the institution and so needs specific provision in order to be protected under the Bill.

A member does not include a person who simply studies or used to study at the university, though some might use the term in that way. Current students would be covered by the term “students”. It also does not include a recipient of an honorary degree, which is awarded to honour an individual and does not give any academic or professional privilege.

The term “member” is well understood in both legislation and universities. In particular, it is already a category of individuals which is protected under the Education (No. 2) Act 1986, which sets out the current freedom of speech duties.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
- Hansard - - - Excerpts

It appears, according to Clause 2, that colleges are constituent parts of universities and are therefore brought into this Bill. Given that Oxbridge colleges refer to people as members, would it be possible for the noble Earl to think about further clarification? While I understand the general point that “members” might have a clear definition, it is not clear in the Bill as currently framed.

--- Later in debate ---
Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I would be happy to take this away and investigate. Once I have done so, I would be happy to write to the noble Baroness and the noble Lord, Lord Wallace.

Lord Triesman Portrait Lord Triesman (Lab)
- Hansard - - - Excerpts

I would be grateful for that letter as well. I suggest to the noble Earl that one of my experiences of these colleges is that they do not go back and read anything much later than 1650—I do not mean pm—and they probably do not care. If it is has to be clarified, it is much better that it is clarified.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I am grateful to the noble Lord. I wanted just to cover another question that the noble Baroness put to me about retired professors. If a retired professor is an emeritus professor, they are protected by the Bill as a member. This is important if they still have a role in the university. If they have no such role, then in practice the provider will not have to take steps to secure their freedom of speech since they will not be speaking on campus or taking part in university life.

I turn to Amendments 22, 26 and 71, which seek to define academic staff for the purpose of the Bill. We have used the term “staff” to broaden the existing reference to “employees” in the Education (No. 2) Act 1986, as not all those who work at a provider have an employment contract or employee status. This term is already used in the current definition of academic freedom in the Higher Education and Research Act 2017 so is an understood term in this context.

“Staff” includes academics who hold honorary appointments for which they are not paid, for example honorary fellows. PhD students will be considered to be academic staff, for example, in so far as they teach undergraduate students. It will be a question of fact in each case whether they are covered as staff or students. The term covers staff at all levels, whether or not they are full time or part time, permanent or temporary. Visiting staff who are perhaps working at the university for a year are also covered. They must be distinguished from visiting speakers who are academics working at another institution, who are covered by the Bill as visiting speakers, rather than as staff of the provider.

I listened with care to the noble Lord, Lord Stevens of Birmingham, and his question about the way in which academic freedom interacts with academic standards. I said earlier that there is nothing in the Bill to encourage baseless or harmful claims or bad science on campus, but it is important to recognise that a provider in this context is an employer, and that its staff will have signed an employment contract and be subject to its employment policies.

Lord Mann Portrait Lord Mann (Non-Afl)
- Hansard - - - Excerpts

Under the Bill as currently worded, would the emeritus professor at Sussex University—who was not an employee but would have been covered—who was sacked four years ago for saying that 9/11 was an Israeli plot have had the option of suing the university?

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I do not think it is for the Bill—or indeed the Government—to specify an answer to that question one way or the other. It would depend on the policy of the university as to whether it wished to still regard that person as an emeritus professor if it took exception to what he said. I think that is as far as I can go at the moment, but I am happy to write to the noble Lord, Lord Mann—

Lord Mann Portrait Lord Mann (Non-Afl)
- Hansard - - - Excerpts

So, is the Minister clarifying that there is nothing in the Bill that would prohibit the university from sacking that emeritus professor if the university determined that it was appropriate?

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

Exactly right.

I was making the point that a provider in this context is an employer and that its staff will be subject to its employment policies. Those policies must, of course, take account of the high regard that academic freedom is held in. However, depending on the circumstances, a provider may need to consider factors such as whether it is appropriate for the academic to continue to teach students; whether the academic has met accepted academic standards for their speech; and the ability of the academic to properly represent the provider in terms of its values and the reputation of the department and the provider.

The Bill recognises the nuances of the potentially difficult decisions that will need to be made under it. The “reasonably practicable” test allows for case-by-case decisions to be made, taking account of all the relevant factors.

Lord Macdonald of River Glaven Portrait Lord Macdonald of River Glaven (CB)
- Hansard - - - Excerpts

Does the noble Earl nevertheless recognise that this is one of the weaknesses in the Bill that is causing consternation in universities: that it appears on the face of it to provide what I might describe as malignant actors—the sort of individuals the noble Lord has just referred to—with several new avenues to cause disruption, difficulties and problems for universities, including potentially launching a specific new tort? Is it not a weakness in the Bill that universities are likely to be subject to malignant activity?

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

With great respect to the noble Lord, I challenge any university to point to a provision in the Bill that changes the duties and responsibilities it has at the moment to take decisions for itself about what constitutes malignant speech, unsound science or whatever it happens to be. The Government are not trying to interfere in any way with the autonomy of universities in that sense.

Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
- Hansard - - - Excerpts

I am really quite surprised, because I hoped that the noble Earl was going to respond to my question, which was based on the question from the noble Lord, Lord Stevens, with some magic provision in the Bill or in the parent 1986 Act—if I can put it like that—which ensures that academic standards are specifically protected and held in the balance with the vital freedom of speech. If that is not the case we really do have a problem, because we then have the potential for one of the scientists I described in my hypothetical to sue under the new tort on the basis that they are being dismissed because of their speech and beliefs. The university will say, “No, it’s because of your bad science”, but they could say, “No, it’s because of my speech and beliefs”, and then the university would face costly, lengthy litigation.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

We always have to come back to what the Bill specifies that a university should do, which is to take reasonably practicable steps. That is governed by the circumstances and facts of the case, which the university will have to weigh up: the pros and the cons, the arguments on either side. That is nothing different from what they do at the moment. In a later group, the ninth, I think, we shall come to the issue of tort and, if the noble Baroness will forgive me, I will not cover that now, but I shall cover the questions that she asked me about who exactly we are referring to in subsections (2) and (3) of proposed new Section A1.

--- Later in debate ---
Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
- Hansard - - - Excerpts

My Lords, I welcome these amendments, because they probe the practical implications of these clauses. The noble Lord, Lord Grabiner, raised the point about the code of practice, and I was going to ask the Minister exactly how the code of practice in new Section A2 would cover the circumstances in relation to these amendments.

At the end of the day, as the noble Lord, Lord Mann, says, organising meetings has all kinds of implications for universities and colleges. Health and safety is a critical issue for the organisation of meetings, and the timing of meetings has employment issues, relating to staff and things like that. There is a whole range of practical issues that could result in having to say to the organisers of a meeting that they cannot have their meeting on that day or in that place.

The Minister may say that the code of practice referred to in new Section A2 talks about the procedures to be followed in connection with the organisation of meetings to be held on the provider’s premises. I want to know about the status of the code of practice and how the office of free speech will look at it. Are we going to end up with universities producing a code which fits all their requirements—health and safety requirements, employment law conditions, staffing issues, security issues and so on—then being tied up with people challenging it through the complaints process, saying, “They said that thing about health and safety as an excuse to ban us having a meeting on the premises.” I have heard it before. I have heard people say, “What has health and safety got to do with it?” or “Why should a maintenance staff member tell us to get out at 8 o’clock when I want to continue this speech and have this meeting?” There are practical implications.

How does a university know that the code of practice it adopts according to new Section A2 will meet the requirements? Will draft codes be circulated? What sort of advice and guidance will universities get—or are the Government simply going to say that this is all about what is reasonably practicable? I have heard those words many times in different contexts, particularly in terms of employment law and conditions. I hope that the Minister can reassure us on these probing amendments. Universities are independent bodies and should be able to manage their own organisation without the interference of outside bodies. I think this is a step too far.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, the group of amendments to Clauses 1 and 3 tabled in the name of my noble friend Lord Willetts and spoken to by the noble Lord, Lord Stevens, seek to give higher education providers and student unions the flexibility to move events to alternative premises but not cancel them. The noble Lord, Lord Mann, has also tabled Amendment 6 to the provisions concerning premises.

Under the Bill as drafted, providers, colleges and student unions will already be free to move events to alternative rooms, should that be appropriate. The main duty of taking reasonably practicable steps to secure freedom of speech is linked to the provisions that are the subject of these amendments—those in proposed new Section A1(3). This means that the duty is to take reasonably practicable steps to secure that the use of premises, and the terms on which such use is offered, are not based on the ideas, beliefs or views of individuals or groups. The duty to take reasonably practicable steps therefore means that there is already flexibility.

In any event, a provider, college or students’ union is not required under the Bill to allow the use of their premises at all times and in an unlimited way. It is open to them to offer particular rooms for use by event organisers at specified times. As regards Amendment 6, Section A1(3)(a) refers to “any premises” but could refer to “premises” without changing the effect. It should also be noted that the relevant body can place conditions on the use of rooms.

In this context, it might be helpful to touch specifically on the point raised at Second Reading by the right reverend Prelate the Bishop of Coventry regarding concerns about the use of faith spaces. I was very happy to meet him some days ago to discuss this. The example given by the noble Lord, Lord Mann, of having an anti-Israel talk right next to Jewish premises, touches on a similar point. Sections A1(3) and (4) on the use of premises essentially replicate the wording of the Education (No. 2) Act 1986, referring to beliefs among other things in that context. As I said earlier, the provisions link back to the main reasonably practicable duty in subsection (1), so it is not an absolute requirement. I think that was an initial cause for concern on this point, so I am happy to clarify that. In fact, the “reasonably practicable” steps wording enables providers to continue to designate spaces for use by faith groups without any obligation for the provider to open those spaces up to other groups, whether or not they have conflicting ideologies.

Under the reasonably practicable steps duty, it would be legitimate for a provider not to offer a particular faith space to any group that wants to hold an event, but to offer another suitable space, thereby upholding the freedom of speech duties and preserving the integrity of the space set aside for the faith group. The legislation enables providers to respect the religious views of those with designated rooms, taking into account the duties under the Equality Act, while still complying with the freedom of speech duties. To pick up a point made by the noble Lord, Lord Grabiner, we anticipate that the Office for Students will publish guidance for providers on how to comply with the duties. We can certainly discuss this with the Office for Students to ensure that it covers this issue, which I hope will provide noble Lords with further reassurance.

I just say to the noble Lord, Lord Collins, that providers are already required under the Education (No. 2) Act 1986 to have a code of practice regarding freedom of speech. The Bill strengthens that requirement. Providers will now need to include a statement of values in their codes of practice that clearly sets out the importance of freedom of speech. Providers should be setting the tone and expectations campus-wide so that everyone is confident to express their lawful views and challenge received wisdom, even if their views are unpopular. Codes of practice will also need to set out the criteria that providers will use to make decisions about the use of their premises for events involving potentially controversial views, as well add the criteria for when exceptional circumstances may apply regarding the payment of security costs. The Bill strengthens the duty on providers already set out in the Education Act 1994 so that all students, not just those who are members of student unions, are made aware of the duties and the code. Once again, the Office for Students will give guidance on this.

Lord Triesman Portrait Lord Triesman (Lab)
- Hansard - - - Excerpts

I want to go back to the noble Earl’s point on security costs. I would like to understand a little more what that might involve. My own experience, probably not wholly appropriate, comes from football. Inside many football stadia, including quite small ones, the clubs provide stewards. Sometimes, certainly outside, the police provide security, and sometimes, if it is called for, they also provide it inside. There is a huge argument about who should bear the cost of the police providing security, since it has an often quite considerable impact. In the event that internally provided security, whoever pays for it, is not adequate to the circumstances and the police are called in, who becomes responsible for the costs?

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

Amendments 24 and 43, spoken to by the noble Baroness, Lady Smith, exactly address that set of issues, and I was about to comment on them. They concern the duty to generally bear the security costs for events. Understandably, the amendments probe how the costs of the provision of security for controversial meetings should be distributed among appropriate bodies. The duty on higher education providers, colleges and student unions is that they must not pass on some or all of the security costs to event organisers unless there are exceptional circumstances. The criteria for what are exceptional circumstances will depend on the nature of the particular body, and therefore must be set out in its code of practice, for the sake of transparency.

This element of the Bill is exceptionally important. We know that certain minority groups face serious security concerns when speaking on university campuses, as the noble Baroness, Lady Bennett, pointed out. My right honourable friend the Minister spoke in the other place about the University of Bristol students’ union imposing a £500 security bill on a student society in order to allow the Israeli ambassador to give a talk. This is simply not right. The cost of securing events should not stand in the way of people having a voice. The Bill as currently drafted protects these groups while also giving autonomy to providers, colleges and student unions to make their own decisions about what constitute exceptional circumstances. This drafting reflects that their resources are not finite and that there may be other relevant factors specific to that institution that will need to be taken into account.

The noble Baroness, Lady Smith, asked about exceptional circumstances and when costs can be passed on. We believe it is important that providers, colleges and student unions have the right to determine what constitutes an exceptional circumstance when considering who should pay for security costs of an event, taking into account, in particular, what is reasonable given their resources and other relevant factors. It is also important that the criteria they use are transparent, so that student societies are aware of them when they are planning an event. If costs are passed on to a student society and it considers that the criteria have been wrongly applied, it will be able to complain to the OfS under the new complaints scheme. Once again, we anticipate that the OfS will publish guidance on the content of codes of practice, including on security costs.

Lord Triesman Portrait Lord Triesman (Lab)
- Hansard - - - Excerpts

When the police decide to intervene, it is often not because a host organisation decides that they should or invites them to. They make a judgment, as constables, as to what would constitute a way of securing a peaceful circumstance for the event or for the premises. Nobody knows that it is going to happen unless they decide to do it, and nobody decides who is going to pay for it in advance, but happen it does, and arguments about who should then pay for it occur. How would a code of practice deal with that?

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I am not sure I accept the noble Lord’s argument. If an event is properly planned—which it should be, particularly if it is sensitive or controversial—its security implications should surely be considered in advance. If it involves a police presence, that consideration should surely encompass the cost of that police presence. It would be a very remiss institution that did not look at the effects and requirements of the event in the round before it happened.

Lord Grabiner Portrait Lord Grabiner (CB)
- Hansard - - - Excerpts

If I may respectfully say so, that is a terribly important point. It is obviously critical that people give careful consideration in advance as to whether they are going to invite a particular speaker, or whoever it may be, to come along and speak. I made a note of what I regard as a rather important observation the Minister made a little earlier this evening; he said that there is no right to a platform. That is a very important point. If I may say so, it would be helpful to record that point in the code of practice in due course, because if at the outset the relevant university organisation can anticipate a problem, one way of resolving that problem, including the cost question, is simply to say, “There is no right to a platform and we are not going to invite this person to speak”. That also involves necessarily the proposition that each of the university institutions has a very good processing place for room booking and matters of that kind. That is a very important point. I respectfully suggest that the code of practice should emphasise the importance of that discretionary power, which would not give rise to any liability or obligation on the institution under the Bill, if and when it becomes legislation, and that institutions are free to say no from the outset.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I am very grateful to the noble Lord; I will certainly take that point away and make sure that it is noted.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
- Hansard - - - Excerpts

Following on from the point made by the noble Lord, Lord Grabiner, could the Minister clarify how the Government envisage the duties in the legislation we are debating today and the Prevent duties? There is already a whole set of pieces of paper and so on that organisers of events in higher education institutions are required to fill in. Are we expecting additional work and additional documents, or would the same set of paperwork work for this legislation as well as for Prevent?

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

We are coming later on to a group of amendments that could well encompass the noble Baroness’s question about the Prevent duty, but my answer to her now is that the planning of an event involves a number of considerations: the security costs; whether it impacts in any way on the Prevent duty; whether it impacts in any way on the public sector equality duty; and so on and so forth. This is a set of issues relating to an event that might be considered controversial that will need to be looked at altogether in the round. I cannot say whether there will be a separate set of papers, but if I receive advice on that point, I will certainly write to the noble Baroness.

To conclude, we want these provisions to offer a safeguard to groups that might come under serious security pressures, while also giving providers, colleges and student unions the independence that they need. I hope I have reassured noble Lords on these issues and sufficiently addressed the concerns raised.

Lord Stevens of Birmingham Portrait Lord Stevens of Birmingham (CB)
- Hansard - - - Excerpts

I beg leave to withdraw Amendment 5.

Higher Education (Freedom of Speech) Bill

(Limited Text - Ministerial Extracts only)

Read Full debate
Committee stage
Wednesday 2nd November 2022

(2 years ago)

Grand Committee
Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Amendment Paper: HL Bill 30-II Second marshalled list for Grand Committee - (31 Oct 2022)

This text is a record of ministerial contributions to a debate held as part of the Higher Education (Freedom of Speech) Act 2023 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Debate on Amendment 12 resumed.
Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, as the Committee will be aware, our debate on Monday on academic freedom and associated issues was paused following the contribution of the noble Baroness, Lady Thornton. I should now like to pick up the various strands of that debate and respond to questions and points raised by noble Lords.

Amendment 12 from my noble friend Lord Sandhurst and the noble Baroness, Lady Fox, seeks to ensure that the academic freedom of visiting speakers is protected under this Bill, and that academic staff suffer no detriment because they have exercised their academic freedom.

First, on visiting speakers who are academic staff elsewhere, I assure the Committee that the Bill as drafted already protects such individuals, but as visiting speakers, rather than as academic staff. The protection of academic staff in new Section A1(7) makes clear that the protection is from losing their jobs or privileges at the provider, or from the likelihood of their securing promotion or different jobs at the provider being reduced. In other words, it is effectively dealing with an employment situation. Such protection would not make sense in the context of an academic speaker who works at another institution. This does not mean that the protection is less for such a visiting speaker, but it is different in nature because of the different relationship of the speaker to the university.

As for prohibiting detriment, the amendment would not allow for any circumstance in which the exercise of academic freedom could result in detriment imposed by the provider. It should be noted here that academic freedom enjoys a special status, reflecting the high level of importance that the courts have consistently placed upon it in the context of the right to freedom of expression under Article 10. However, an outright prohibition of detriment against an academic because they have exercised their academic freedom can be right, as there may be circumstances that mean that action by the provider including dismissal is the right response. If an academic has breached their employment contract or broken the law in some way, they cannot rely on a claim of academic freedom to avoid all consequences.

Amendments 14 and 17 seek to amend the definition of academic freedom in new Section A1 specifically to protect an academic’s freedom to criticise an institute at which they work and other activities included in the UNESCO recommendation of 1997. The UNESCO recommendation refers to

“the right, without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies”.

Let me make it clear that the definition of academic freedom as currently drafted already covers the questioning and testing of received wisdom, and the putting forward of new ideas and controversial or unpopular opinions. This speech is not limited to particular subjects, so it would include speech concerning the institute at which an academic works.

I turn to the UNESCO definition. The Bill as drafted also protects the right to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, as I have already said, and freedom from institutional censorship. However, as for freedom to participate in professional or representative academic bodies, academic freedom as defined in the Bill is a specific element of freedom of speech overall. The Bill covers verbal speech and written material but does not cover the act of affiliating with or joining an organisation. I was already aware that this is an issue that the noble Baroness, Lady Falkner of Margravine, was interested in as chair of the Equality and Human Rights Commission, so I am glad to be able to put that on the record.

Amendment 15, tabled by the noble Lord, Lord Wallace of Saltaire, and spoken to by the noble Baroness, Lady Smith, distinguishes between freedom of academic speech within the academic context and freedom of speech for academics and other citizens within the wider public sphere. It is important to state first of all that academic speech is protected under the Bill as part of freedom of speech more generally. The protection is the same for academic staff as compared to other staff and students, but the Bill makes clear that academics should not be at risk of losing their jobs or privileges or of damaging their career prospects because of their speech.

The amendment is similar to a previous provision in the Bill that set out that academic freedom under the Bill meant freedom of academic staff within the law and within their field of expertise. The Government listened carefully to the issues raised during the passage of the Bill in the other place, noting the concern that the definition of academic freedom was too narrow. In fact, the provision was a reflection of Strasbourg case law, and we were clear that it should be interpreted broadly, but we wanted to avoid any perception of such a limitation. We therefore decided that it would be appropriate to remove the “field of expertise” provision, which I think was a widely appreciated outcome. I hope the Committee will appreciate that explanation of how the definition of academic freedom in the Bill has developed.

Amendment 16 seeks to remove from the definition of academic freedom the reference to “controversial or unpopular opinions”. The purpose is to understand whether, where such opinions are not based on evidence, they should be included in the protection of academic freedom. The Bill builds upon the definition of academic freedom that already exists within the Higher Education and Research Act 2017. That definition goes back at least as far as the Education Reform Act 1988, so it is a long-standing one, and it includes the freedom to put forward controversial or unpopular opinions. Academic staff in our universities should feel safe to put forward controversial or unpopular opinions and ideas, whether or not they are based on evidence.

As I said at Second Reading, free speech is the lifeblood of a university, allowing students and staff to explore a spectrum of views, engage in robust debate and pursue their quest for knowledge. Limiting freedom of speech to areas that are not controversial or unpopular would make the definition of academic freedom in this context anodyne and narrow. Equally, limiting freedom of speech to areas that are only supported by evidence would unnecessarily narrow the scope of academic freedom under which academic staff should be free to roam the full spectrum of knowledge and ideas.

Amendment 18 seeks to ensure that an academic is fully protected from adverse consequences to their job, privileges and career prospects. The current drafting of new Section A1(6) refers to the risk of being adversely affected. This covers both the risk of adverse effect and the actual adverse effect, since in the latter case the academic must first have suffered the threat before the occurrence. Accordingly, should a member of academic staff find themselves actually adversely affected as a result of exercising their freedom of speech—having lost their job, for example—they would be covered by the academic freedom provisions of the Bill.

Amendment 19 seeks to add further protection for academic staff from the risk of losing responsibilities or opportunities. I assure noble Lords that the Bill as drafted would already protect an academic from such a risk. First, in addition to the wording relating to privileges, there is already reference to the risk of losing one’s job or the likelihood of securing promotion or a different job being reduced. More importantly, I want to be clear that academic freedom for the purpose of the Bill is considered to be a subset of freedom of speech—a distinct element with particular considerations, within that broader concept—so the main duty to take reasonably practicable steps to secure freedom of speech includes the duty to secure academic freedom. If a person suffers loss as a result, whether because of their academic freedom or freedom of speech more widely, then they can seek recompense through the new complaints scheme or, as we shall discuss later, using the tort.

Amendments 20 and 23 in the name of the noble Lord, Lord Wallace of Saltaire, are, as was explained, intended to probe the practicality and appropriateness of the intrusion of the Bill into university promotion and appointment processes. It is important that the Bill’s definition of academic freedom goes beyond referring to the risk of losing one’s job or privileges and that it should also cover applications for promotion or another job at an institution. This is not currently covered by the existing legislative definition of academic freedom. An academic should not be held back from progressing their career within a university because they have questioned or tested the received wisdom, or put forward new and unpopular or controversial ideas. It is vital that academics can research and teach on subjects and issues that may test the boundaries, otherwise our higher education system would wrongly be limiting itself, which would disadvantage everyone.

Equally, this protection should not be limited to jobs within a university, otherwise academics may find it hard to progress their careers by moving to another institution. That is why we are applying a similar measure of protection to external applicants for academic appointments. The Government believe that freedom of speech in the context of higher education is so important that the provisions set out in the Bill that will apply to the promotion and appointments process are indeed appropriate and necessary.

Amendment 21 seeks to protect academic freedom under the Bill, regardless of the potential consequences for the reputation of the provider. The approach taken in the Bill is to impose a duty on providers to take reasonably practicable steps to secure freedom of speech within the law, including academic speech. A new aspect of this duty is that they must have particular regard to the importance of freedom of speech when considering what steps are reasonably practicable. The requirement to have “particular regard” to the importance of freedom of speech could, in a particular case, prompt a provider to prioritise freedom of speech over another right. However, this would remain subject to its assessment of what is reasonably practicable, and would need to be lawful. This test emphasises the significance of freedom of speech within the law and the need to protect it, where it is reasonably practicable to do so.

I come back to a point I made on an earlier group. Nothing in the Bill prevents a provider looking at the statements or utterances of an academic and considering whether that individual has adhered to their employment contract, whether he or she is upholding accepted academic standards and/or the values and reputation of the department and the university. Again, the reasonably practicable test allows for case-by-case decisions to be made, taking account of all the relevant factors. But it is important to recognise that a provider in this context is an employer, as I said, and that will give them the right to go through the deliberative processes that I have just outlined.

In conclusion, I hope my remarks have provided noble Lords with reassurance that the Bill, as drafted, is sufficient to protect academic staff in exercising their academic freedom

--- Later in debate ---
Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
- Hansard - - - Excerpts

This has been a really informative debate. Fundamentally, the noble Baroness, Lady Falkner, has set it in the proper context. I am not sure which hat she was wearing but whichever it was, this has been put in context; it is about balancing duties.

I must admit that, the more we discuss the clauses in this Bill in detail, the more I think about unintended consequences. If we have existing duties and responsibilities, why have they not worked? Why is it that Governments immediately resort to legislation rather than thinking about what is actually going on and asking what powers that they have could be better utilised? On the first day in Committee, a number of noble Lords made precisely that point. They highlighted where they think that things have gone wrong, but did not see this legislation as being particularly the right mechanism for putting it right. This debate has been extremely useful.

I must admit that I found the contribution from the noble Lord, Lord Mann, enlightening. My tendency is to look at my own personal experience at university—many, many years ago. There was quite a lot of hostility and demonstrations, and certainly some of the extremists that the noble Baroness, Lady Fox, talked about—maybe even the noble Baroness herself, as I suspect that we were both at the same university—frequently tried to stop me speaking on behalf of the Labour Party. By the way, I like the idea that I have the luxury of speaking in a personal capacity; maybe we should tell Conservative Central Office that that is the case—though I am tempted not to do that.

At the end of the day, what we have here is agreement on fundamental principles but disagreement about how you best achieve them. Invariably, there are competing interests at stake when speakers are invited to our campuses but, as the noble Lord, Lord Mann, said, freedom of speech is not a trump card. I make that point to the noble Lord, Lord Moylan. He may be able to qualify his words but, fundamentally, as the noble Baroness, Lady Falkner, said, those words do put it into a hierarchy, which I think is particularly dangerous.

Whether we like it or not, universities have a broad range of responsibilities, and not only to academic staff and students; they are also big employers and so have a duty to other staff as well—particularly when it comes to statutory legislation such as that on health and safety, which is something they must take into account when exercising these responsibilities.

As the noble Lord, Lord Mann, said, students have a right not to be harassed or subjected to hate speech. Most importantly, as he said, they have a right to protest and to say that the opinions being expressed by somebody who has been invited to their university are abhorrent. When I was at university, extremist religious faith groups were saying that my sexuality represented an evil thing that needed to be banned and stopped. Fortunately, we have moved on and do not allow that in quite the same way. If a religious fundamentalist came here, I would expect to have the right to say that I found their opinion abhorrent. The noble Lord, Lord Mann, was absolutely right, and the case that he used to illustrate this is an important one.

When I looked at the Bill’s Committee stage in the Commons, I saw that points were made, with reference to the evidence sessions, about how the Equality Act could be used:

“Professor Stephen Whittle from Manchester Metropolitan University acknowledged as much in the Bill Committee, recognising that the Equality Act would afford protection only if the speech were directly addressed to the complainant. That is important because front groups such as Hizb ut-Tahrir, which is not a proscribed organisation but which often espouses antisemitic views, could come on to campus under the guise of freedom of speech.”—[Official Report, Commons, 13/6/22; col. 80.]


There is real concern here about how we must have that balancing act and ensure that people are protected. The example from the noble Lord, Lord Mann, about a family member of someone who suffered the consequences of terrorism, is a really important one.

At the end of the day, we have to try to take into account the sentiments contained in Amendments 29, 32 and 44 and ensure, as the noble Lord, Lord Smith, said, that we recognise those balancing responsibilities. As the noble Baroness, Lady Falkner, said, it is important that this proposed law does not inhibit the balancing of those responsibilities. I certainly have a lot of sympathy for the amendments in the name of the noble Lord, Lord Mann.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, as we have heard, this group brings together a series of amendments that seek to clarify in the Bill how its duties will interact with other duties and responsibilities.

Amendments 29 and 44 in the name of the noble Lord, Lord Mann, seek to ensure that providers and student unions balance their duty to take steps to secure free speech with their duty of care to students, staff and members. Amendment 32 would add this consideration to the duty to promote in Section A3.

I am grateful to the noble Lord for raising this important point and listened with care to the examples he gave. He is quite right that providers have a duty of care to their students under common law, as well as obligations to their staff under employment law. Student unions also have responsibilities to their staff under employment law. It is of the utmost importance that they can fulfil these obligations, providing an environment in which students, academic staff and members can thrive and taking reasonable steps to promote their health, safety and welfare.

As I mentioned, the noble Lord cited a number of examples to illustrate his arguments around the duty of care, one of which was a speaking invitation issued to a convicted terrorist. Inviting a convicted terrorist would likely require consideration under the Prevent duty in addition to the wider points he made on duty of care. I will cover the Prevent duty in more detail when I cover Amendment 69, if he will allow.

Lord Mann Portrait Lord Mann (Non-Afl)
- Hansard - - - Excerpts

I thank the Minister but, to clarify, the case I cited was not stopped by Prevent. Prevent was in place. This was an actual example, not a theoretical one, but I do not want to name the college or identify the student in any way. It was perfectly lawful under Prevent; Prevent did not stop it and was not party to it. As an actual example, I think it is a good illustration.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I was making the point that the case he used to illustrate the issue would have been likely to engage Prevent even if the Prevent considerations had taken second place to the decision to promote freedom of speech. I do not disagree with the noble Lord in the way he suggests.

This leads to the general point that, to assist it to discharge its duty of care, a provider needs to ensure that it has in place effective and robust systems, policies and procedures for supporting and managing students, and that training and awareness-raising is provided for staff. Such a duty of care does not conflict with the duties in this Bill. The requirement to take reasonably practicable steps allows providers to balance that duty with other duties and responsibilities to students, staff and members.

Amendment 35 from my noble friend Lord Moylan would add a new provision to the public sector equality duty in the Equality Act 2010, whereby public authorities would need to have particular regard to their free speech duties. The amendment raises an important point. Providers are subject to different duties, and it is vital that they balance them appropriately. However, the Government are clear that the duties in the Bill will not override existing duties under the Equality Act, nor will those existing duties override the duties in the Bill. The noble Baroness, Lady Fox, cited the briefing from SOAS, which I have read. The briefing is absolutely incorrect to suggest otherwise. We need to remember that the public sector equality duty is a “due regard” duty.

There have been occasions when the Equality Act has been misinterpreted by providers—for example, as to whether the conduct is harassment—but the Office for Students will publish guidance to help bodies under this Act understand their duties and apply them. Providers will be required to take reasonably practicable steps to secure freedom of speech. In deciding what is reasonably practicable, they must have particular regard to the importance of freedom of speech. This does not mean that freedom of speech must always outweigh other considerations but indicates that it is a very important factor and will need to be weighed against other factors, including the public sector equality duty.

--- Later in debate ---
Baroness Chakrabarti Portrait Baroness Chakrabarti (Lab)
- Hansard - - - Excerpts

My Lords, I will briefly probe the amendment of the noble Lord, Lord Moylan, and probe the Minister a bit by way of that amendment. I support the amendments in the names of the noble Lords, Lord Willetts and Lord Stevens of Birmingham.

On the latter, I lament this intrusion into university autonomy, which has been going on for some time. I listened carefully to the point raised by the noble Baroness, Lady Fox: what is a university? Clearly, universities are to be places of free speech but also of free inquiry and independence from the state. They predate all the legislation that we have cited, which is really quite special. I am concerned about regulatory creep—not on employment and non-discrimination but on the content of the actual academic enterprise, if I can put it like that.

I broadly support the noble Lords in their common-sense amendments and I do not think anybody should really disagree. I do not want the Office for Students and all the rest of this architecture to be needed, but if it is going to be there then surely the duty to provide guidance should be a “must”, not a “may”, once we have entered this arena.

The amendment of the noble Lord, Lord Moylan—I am using it as a means to probe the Minister—wants the universities to

“have particular regard to the need to … (a) eliminate unlawful interference with freedom of speech within the law and academic freedom”.

Surely he should want them to seek to eliminate lawful interference with free speech too. Some of the problems that he must be concerned about are where people are not putting bricks through windows or breaching the criminal law to intimidate but are just making it not very pleasant to have debate and free speech. If he is to bring his amendment back, I say in a spirit of bipartisanship that that is a drafting problem or has not been completely thought through.

My real probe relates to something that the noble Lord, Lord Stevens of Birmingham, said last time that I found particularly revelatory. Of course a university must be a place of free speech and debate, but it must also be a place of academic excellence, or at least of academic quality. Surely that must sit alongside free speech. A university is not just a debating society or the public square; it is a place of academic improvement, inquiry and even excellence. Despite my politics, I do not shrink from the word “excellence”.

My question to the noble Lord, Lord Moylan, is again on the territory that we opened up with the Minister last time: where in this proposed statute or any other, if we are going to be prescribing duties around free speech, are the duties to protect academic standards? It was the noble Lord, Lord Stevens, who opened up this issue in my mind and I have been worried about it for the last couple of days. If free speech trumps everything, or at least academic standards, and those standards and the duty to maintain them are not prescribed in law, what happens with bad science and fake facts? What happens when a person declares that they must be protected from management, and possibly even from losing their post, because they are just writing and teaching rubbish? Our students, who are now consumers, deserve better.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I am not sure the noble Baroness was in the Committee when I covered that very point quite near the beginning of our debate today. I tried to cover it on Monday but I expanded on it today as well.

Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
- Hansard - - - Excerpts

My Lords, I am very much in favour of Amendment 31. To put a different emphasis on it from what there has been so far, the amendment by the noble Lord, Lord Moylan, is helpful in making a positive attempt at promoting free speech. The amendment says

“foster a culture of free thought and open-mindedness, in all decision-making concerning the provision of higher education and in conducting and managing research activities”.

It is that bit about promotion that is helpful in terms of shifting the emphasis of the discussion a little bit about how we should view the Bill.

I found that I was reading this small HEPI—if that is how you say it—pamphlet in preparation for the student union group of debates later on. I found it a really interesting little book. The foreword is by Professor James Tooley, the vice-chancellor of the University of Buckingham, which has also co-published the book. I should declare my interest that I am a visiting professor at the University of Buckingham. Professor Tooley says:

“For many academics, the focus”


is

“only on the negative, on the ‘sticks’ of the law”.

He advocates that we focus on

“the positive, the ‘carrots’ of the intellectual and social attraction of academic freedom”.

Many people have said that the problem with the Bill is that does not tackle the cultural issues—that it avoids the question of what has happened to the positive association of universities with academic freedom. One of the contributions earlier asked why the 1986 duties have not worked and what the point is of bringing them under the Bill. Quite a lot has changed since those duties were brought in in the sphere of academic freedom, which is why I believe we need to pass a version of the Bill, no doubt amended, but not to use it as a silver bullet that avoids tackling the cultural issues. Anything that the Bill does to foster the promotion of free speech is very important. The main thing that I would urge is that the status quo position of “leave it as it is” is not acceptable. That is the kind of complacency that I hear. Universities will not survive and the academic standards that have just been referred to will deteriorate.

There is a tendency to blame students when we look at what has changed recently; they are either disparagingly written off as “Generation Snowflake” or, more positively, posed as uniquely sensitive to the issues of oppressed identity groups—unlike previous generations, who have never understood suffering—and having a unique insight into them. A combination of both is true. I do not want to blame students, but it is true that, whenever I talk at universities on free speech, many of them talk about it as if it were a value from “ye olden days”. They sometimes say: “We respect your right to think that free speech is important, but we have other priorities.”

I often find that commitment to free speech, on and off campus, is under strain not among the young but among the grown-ups, as it were. At best, there can be a shallow, instrumental lip service paid to the value of free speech, with so many “ifs”, “buts” and caveats that it is barely there. There is hardly a compelling case for the positive virtues of free speech, but rather a grudging acceptance that it is important, always accompanied by an emphasis on how it can play a corrosive and dangerous role in society and lead to a toxic political culture, hate crimes and, as we have heard in this debate, all these charlatan quack scientists dragging down educational standards.

Even the emphasis that the Bill and everyone else want to place on free speech within the law as a qualifier feels a bit tepid, especially when Governments of all stripes have regularly infringed free speech through legislation. As we speak, we have a Government proposing a pro-free speech Bill at the same time as the Online Safety Bill and the Public Order Bill, which are hardly wildly pro-free speech pieces of legislation. On campus, we have seen lots of academics, rather than students, introducing things that have undermined the culture of academic freedom. Whether it is mandated courses in microaggressions or unconscious bias, people feel as though they are walking on eggshells.

It is very important that we use this legislation—this is why I like Amendment 31—to make a positive case for the inviolable moral good of free speech. There was a lot of coverage of the seminar in Cambridge where, as the newspapers described it, students were trained in free speech. One of my colleagues ran it, Alastair Donald from Living Freedom; Andrew Doyle, the author of The New Puritans, spoke on Milton and Dr Piers Benn on Locke. What was really fascinating was that the reports of the students who attended last night said things such as, “I thought that coming to Cambridge would be like this, but it hasn’t been until tonight”. They also said that they often feel constrained in what they can say at university by their own tutors tut-tutting if they say the wrong thing.

When I brought out my book ‘I Find That Offensive!’ in 2016, I was warned that it was exaggerated—of course, it ended up completely underestimating the problem—and that young people would hate it and shun me because it addressed “Generation Snowflake” and the culture of “safetyism”. The truth is that, when it was published, the people who hated it were the educational establishment; it got terrible reviews in all the educational press. The people who really liked it were students. I spent two years doing a tour of all universities speaking about it. The students said, “Phew, it’s a relief to have somebody talking about this. I had never heard arguments like this before. I never really understood the history or philosophy of free speech.” It was not that they all loved me or agreed with me; they were just glad that someone was prepared to have the open discussion and debate.

We have to use this piece of legislation to promote free speech and academic freedom as much as we can. I support Amendment 31.

--- Later in debate ---
Lord Grabiner Portrait Lord Grabiner (CB)
- Hansard - - - Excerpts

My Lords, I will be very brief. On the point made a moment ago by the noble Baroness, one of the oddities about the Kathleen Stock case—the noble Baroness, Lady Falkner, knows a lot more about this than I do—is that she undoubtedly would have had a claim for breach of contract. It appears that some agreement was arrived at and the matter was settled, but she would have had a very clear and good claim against the employer for breach of contract, without the need for anything in this Bill, which does not advance matters. However, we will come to that at a later moment.

I respectfully support the amendments from the noble Lord, Lord Willetts, but I am not going to get involved in the Moylan debate. I firmly support Amendments 54 to 56 because what is critical, as has become apparent in the course of these debates, is the importance under the Bill of the guidance and code of practice. It is vital that the code of practice that eventually results is an absolutely bullet-proof and really impressive document. The proposals from the noble Lord, Lord Willetts, would achieve that and strengthen the current drafting.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, this group of amendments relates to duties and powers to promote freedom of speech under the Bill. Amendment 31, tabled by my noble friend Lord Moylan, seeks to clarify the steps that a higher education provider or college would need to take in order to promote the importance of freedom of speech and academic freedom. This amendment would replace the duty to promote the importance of freedom of speech and academic freedom with a duty to have particular regard to certain matters, including the need to eliminate unlawful interference with freedom of speech and academic freedom and to promote and prioritise the particular importance of freedom of speech.

By replacing the duty as drafted, I suggest to my noble friend that this amendment would in fact weaken the duties under the Bill by replacing a duty to do something—the words, “must promote”—with a duty to “have particular regard”. Providers will already be required, under new Section A1, to take reasonably practicable steps to secure freedom of speech. In doing so, they will need to have particular regard to the importance of freedom of speech. As part of this, we would expect providers to consider many of the matters suggested by this amendment and do not consider it necessary to set these out in detail. Indeed, prescribing the matters to which providers must have regard in this way could have unintended consequences, and result in providers taking a less comprehensive and balanced approach to their duties overall.

My noble friend asked me why specifically I could object to his amendment. There is a good reason, as I have indicated, which is that the amendment would have the effect of removing the duty to promote the importance of freedom of speech and academic freedom. That is a new and important duty, created by the Bill, that will drive forward a culture where freedom of speech is fostered and celebrated and students, staff and visiting speakers feel confident to express their views freely.

Amendment 33 in the name of my noble friend Lord Willetts and the noble Lord, Lord Stevens, seeks to amend the duty to promote the importance of freedom of speech and academic freedom by adding a duty to have due regard to all the other relevant legal duties. We have already discussed the issue of the interaction of the Bill with other duties. The main duty in the Bill is to take reasonably practicable steps to secure freedom of speech within the law. That means that providers, colleges and student unions can take account of all their legal duties on a case-by-case basis. So the duty does not override existing duties under the Equality Act 2010 regarding harassment and unlawful discrimination nor, for providers, the public sector equality duty or the Prevent duty. If another legal duty requires or gives rise to certain action, it would not be reasonably practicable to override that.

I agree that the University of Essex report showed that there were misunderstandings of how the Equality Act should be properly applied, but we hope and trust that the measures in the Bill will, as I said earlier in response to a point made by the noble Lord, Lord Collins, serve to minimise those misunderstandings.

As I have previously said, the duty is derived from the current legislation in the Education (No. 2) Act 1986, so it is not new. Providers have been balancing their legal duties for many years: in relation to unlawful discrimination and harassment under the Public Order Act 1986 for 35 years, in relation to the public sector equality duty since 2011, and in relation to the Prevent duty since 2015. However, the new duty to promote the importance of freedom of speech and academic freedom might mean that a provider speaks out publicly to defend the freedom of speech of a staff member in the face of calls for them to be removed for something they had said, or it might involve giving talks to staff and students on the importance of freedom of speech in democracies.

We come back to an objective that I have mentioned before, which is the need in some institutions for a change of culture. Noble Lords will appreciate that the duty to promote is a high-level duty designed to give rise over time to a change in culture on university campuses. It is not a duty to promote freedom of speech. Rather, it is a duty to promote the importance of freedom of speech. As such, I do not believe that it needs the additional “due regard” duty as proposed.

Amendments 54, 55 and 56 in the name of my noble friend Lord Willetts seek to require the Office for Students to consult on and publish guidance relating to the promotion of freedom of speech and academic freedom, and to require it to give advice on that in a timely manner. Clause 5 inserts new Section 69A into the Higher Education and Research Act 2017. This provides that the OfS may identify good practice and give advice to providers and colleges on the promotion of freedom of speech and academic freedom. This wording is entirely based on Section 35 of the 2017 Act, which provides that:

“The OfS may … identify good practice relating to the promotion of equality of opportunity, and … give advice about such practice to registered higher education providers.”


Accordingly, the provision does not concern the new duty on providers and colleges to promote the importance of freedom and speech and academic freedom in new Section A3 that I have just described. Rather, it concerns the duties of the OfS and the advice that it can give to providers and colleges generally about how they can promote freedom of speech on campus.

I hope my noble friend Lord Willetts will be reassured to know that Section 75 of the 2017 Act, as amended by this Bill, will require the regulatory framework of the OfS to include guidance for providers on the general ongoing registration conditions, which will now include specific registration conditions on free speech in accordance with Clause 6, as well as guidance for student unions on their freedom of speech duties. Therefore, it will be here that the OfS will set out guidance on the new duty under Section A3 to promote the importance of freedom of speech and academic freedom, which must be complied with under the registration conditions.

--- Later in debate ---
Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
- Hansard - - - Excerpts

Yes. Then we get into a much bigger question, which for me is the most important political question. I know my noble friend has also entered into debates on that issue, including on TRIPS and stuff like that.

I will be interested to hear the Minister’s response to this point. Personally, I do not think that these amendments are in the right Bill or the right place.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, this group of amendments relates to impartial research funding. Amendment 34 in the name of my noble friend Lord Moylan would introduce a new duty to require higher education providers to take reasonable steps not to refuse to grant funds for research because of a recipient’s lawful principles or political opinions.

Amendments 45 and 46, also tabled by my noble friend, seek to make clear, first, in respect of donations and sponsorship to registered higher education providers and, secondly, in respect of funding through UK Research and Innovation, that the donor, grantor or provider may never restrict the freedom of speech of those working under the funding. Amendment 53 in the name of the noble Lord, Lord Sikka, is about the awards of grants for academic research.

--- Later in debate ---
Baroness Thornton Portrait Baroness Thornton (Lab)
- Hansard - - - Excerpts

My Lords, my main regret about this debate is that my noble friend Lord Triesman did not mention the London School of Economics, which is where I went. While we were having this debate, I looked it up and there are hundreds of societies at the LSE. I enjoyed the fact that, if you look at the history of the student union—the student union at the LSE is the oldest in the country—you find that I feature in there, having led occupations of the director’s studio for the nursery campaign in the early 1970s. I was trying to think how on earth we would have coped with this legislation when I was a member of the student union executive at the London School of Economics in the early 1970s.

My noble friend Lord Triesman was quite right. As the noble Lord, Lord Smith, said, I do not think what is in the Bill at the moment meets the test of what will actually work and be able to be delivered by our student bodies. It is too complex. My understanding is that student unions also have the Charity Commissioners as part of their regulation, so that adds extra complexity to this issue.

I think I agree with other noble Lords that the Government need to look at this issue again. The noble Baroness’s amendment might provide a good basis for something that is simpler and which can actually be delivered by 18 and 19 year-olds. I look at the Bill team, and some of them are not that far away from having been rather young. They need to think back to what they would have done in their student days and how they might have been able to protect the right of freedom of speech then.

This is one of those occasions when the Government might need to look at this again and ask whether it will work as it is intended. Have discussions taken place with student union representatives in a process of asking them how this will work and whether it will be able to be carried through?

In case noble Lords are looking it up, my name does not appear but I did lead the occupation of the director’s studio for the nursery campaign.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, Amendment 47 in the names of the noble Baroness, Lady Garden of Frognal, and her colleague the noble Lord, Lord Wallace of Saltaire, seeks to change the way in which student unions are regulated under the Bill.

This amendment would remove the duties on student unions in Clause 3, and instead add them to the duties on providers under the Education Act 1994. The addition of these requirements to that Act would mean that the duty would be on the governing body of the provider to

“take such steps as are reasonably practicable to secure”

the various requirements set out in the amendment and no direct duties would be imposed on student unions. Amendment 47 would therefore make Clause 7 unnecessary. I note the wish of the noble Baroness to remove the clause from the Bill altogether.

Extending the legislative framework to student unions at approved fee cap providers under Clause 3 is a significant step, which fills a gap in the current legislative framework. Freedom of speech on our campuses is an essential element of university life. Student unions play a vital role in this, providing services and support, representing their members and working closely with their provider. It is important that these bodies are accountable for their actions.

There are examples of where student unions have failed to secure freedom of speech. Notably, the student union at Swansea University failed to support members of the university’s Feminist Society, who were threatened and abused for supporting Kathleen Stock—a name I am sure we recognise by now. Rather than protect their freedom of speech, the student union removed the society’s email account and profile page from its systems, denying this group an important platform for reaching others. This incident illustrates the need for action to ensure that student unions are subject to duties on freedom of speech, since we cannot allow that sort of behaviour to continue unchallenged and unregulated.

I noted the support for the amendment expressed by the noble Lord, Lord Smith of Finsbury, but if we took the approach proposed in Amendment 47, the duty would be on the provider to take reasonably practicable steps to secure the various freedom of speech obligations, as I have said, but there would be no requirement on student unions to comply with those requirements. If they did not, this would potentially only result in an internal dispute with the provider.

Although the Charity Commission is involved in regulating student unions which are charities, that is only in respect of charity law. There would also be no oversight of whether or not providers comply with the duty imposed on them. This means that there would be no enforcement or regulatory action taken if they failed to do so.

Finally, and perhaps most importantly in the context of the new regime that this Bill will establish, there would be no means for individuals whose freedom of speech has been improperly restricted to seek recompense. Since the Bill will impose new duties on student unions, it is also necessary that mechanisms are in place to ensure that compliance with the freedom of speech duties of student unions is monitored effectively and that action is taken if those duties are infringed upon.

The noble Lord, Lord Triesman, read into these provisions a burdensome requirement placed on every single student society in every university in England. I make it clear to him that the duties are on student unions and not student societies, even though they may be affiliated with their student union. In practice, this means that only the student union—that is to say, one union per provider—will be regulated.

Clause 7 therefore extends the regulatory functions of the Office for Students so that it can regulate these student unions. This new provision will require the OfS to monitor whether student unions are complying with their duties under new Sections A5 and A6 as inserted by Clause 3. If it appears to the OfS that a student union is failing or has failed to comply with its duties, it will be able to impose a monetary penalty.

Baroness Thornton Portrait Baroness Thornton (Lab)
- Hansard - - - Excerpts

I need some clarification from the noble Earl. I suspect that most of the things that have caused problems have been organised by the societies and all the organisations that are part of the student union. At the LSE, we had a rugby club that invited strippers to its annual dinner—you can imagine how well that went down—but it was not the student union that dealt with that. It was not its job to deal with what the rugby club was doing. This was a very long time ago, but lots of the things that we have been calling in aid in this Bill have not been organised by student unions. Some will have been, but most will have been organised by their constituent parts—the societies and other parts of the student union.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I take the noble Baroness’s point. Those societies will be expected to abide by a code of practice which will be promulgated to all students. While the societies will not be subjected to the full extent of the regulation that I have been talking about, expectations will be placed on them. I cannot yet tell the noble Baroness what will be contained in the code of practice but, as I have mentioned, that code will receive appropriate publicity.

Lord Triesman Portrait Lord Triesman (Lab)
- Hansard - - - Excerpts

To be very clear, I have no difficulty at all with the concept that people in student unions who impede the free speech and academic freedom of others must be dealt with. For the record, I do not have a second’s question about that. I just want us to do things in this Bill that we can actually do. I wonder whether the noble Earl, Lord Howe, might discuss this offline with some of us who have helped to run these kinds of institutions in the past to see whether there is a practical solution to the problem that my noble friend has just illustrated. I do not know about the LSE, but I will lay odds that most student unions find out what their rugby clubs have done months after the event, if they find out at all.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
- Hansard - - - Excerpts

They might find out in the newspapers.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I would hope that a rugby club would not be responsible for inviting somebody to talk about gender politics.

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
- Hansard - - - Excerpts

The Minister is completely wrong about that. It is highly likely that they would, because there is a highly controversial issue around gender, sex and sport. I think he does not fully understand the range of issues that can be addressed by a huge range of societies in the university community.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I bow to the noble Lord’s superior knowledge on this. If noble Lords will allow, I will conclude.

I mentioned the possibility of a monetary penalty, which was raised by the noble Baroness, Lady Garden. The power to impose a monetary penalty is based on the existing enforcement regime for higher education providers and is intended, obviously, to encourage compliance.

New Section 69B will also require the OfS to maintain and publish a list of student unions at approved fee cap providers. This will make it clear which student unions the OfS has been informed by its providers are subject to the duties in new Sections A5 and A6. It will also require those student unions to provide the OfS with information it may require for the performance of its functions. These are new regulatory functions, intended to ensure compliance by student unions with their new duties. Together with Clause 3, this clause will ensure that freedom of speech is protected by not just higher education providers but student unions.

Higher Education (Freedom of Speech) Bill

(Limited Text - Ministerial Extracts only)

Read Full debate
Committee stage
Monday 14th November 2022

(1 year, 12 months ago)

Lords Chamber
Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Watch Debate Amendment Paper: HL Bill 30-III Third marshalled list for Committee - (10 Nov 2022)

This text is a record of ministerial contributions to a debate held as part of the Higher Education (Freedom of Speech) Act 2023 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

I signed the clause stand part proposal from the noble Lord, Lord Willetts. The signatures to it reflect the point that I made at the beginning: this is a non-partisan debate, and it reflects opinion right across the House. I hope that the Minister will listen very carefully, because I would rather him come back and say that there are points on the regulator that the Government want to improve, there may be things that they will change over a period of time, and they will review the Act—if it becomes an Act. But this clause would open the door to courts and litigation that will undermine any good work that the regulator attempts to do, and the debate has shown very clearly that it needs to go.
Earl Howe Portrait Earl Howe (Con)
- View Speech - Hansard - - - Excerpts

My Lords, as noble Lords have indicated, today and at Second Reading, the issue of the proposed new tort is one that has given rise to a number of doubts, questions and worries, which I shall do my best to address. Whether I can entirely assuage those concerns remains to be seen, but I hope that noble Lords find what I say to be helpful at this stage.

Amendment 48 from the noble and learned Lord, Lord Etherton, seeks to make it clear in the Bill that a claim under the tort against a higher education provider or college can be brought only by the individuals specified under new Section A1(2), namely those whose freedom of speech is protected under the Bill. The amendment would also make it clear that such a person must have suffered loss in order to bring a claim. I can confirm without hesitation—and I hope that it is helpful for me to place on the record—that we intend for the new statutory tort to operate as the amendment suggests, which is the usual approach under tort law. This is reflected in the Explanatory Notes.

For someone to make a successful claim via the tort against a provider, the claimant would need to be able to show that the provider owed them a duty of care. Only the class of individuals specified in new Section A1(2) would be able to demonstrate that the provider owed them a duty of care. This is not a question of demonstrating standing to bring a claim, rather a question of demonstrating that they were owed a duty of care—a more limited group that would not, incidentally, include pressure groups.

As for the need to demonstrate that they have suffered loss, the claimant would need to point to a genuine loss that they had suffered as a result of the breach of the freedom of speech duties in new Section A1 in order to claim damages. If we bear in mind that only a person specified in new Section A1(2) could bring a claim, we consider that they would do so only if they have suffered because of a breach of the duties—even if, for example, that loss is injury to feelings and not a monetary loss. I come back to the point I have made before, which may be helpful to the noble Baroness, Lady Fox: we intend the tort to be a backstop, particularly for those situations where an individual disagrees with a recommendation that has been made.

I understand the concern of the noble Lord, Lord Grabiner, that Clause 4 should specify that compensation can be awarded by the courts. There are, as he rightly said, some statutory torts where it specifies this but also torts that do not: for example, Section 138D(2) of the Financial Services and Markets Act 2000. The principal remedy for tort is damages, although, as the noble Lord will know, an injunction and other remedies may also be available. An injunction, for example, could require that a student is readmitted on the course which a provider has removed them from, so we would certainly want a court to be able to order that, if appropriate.

The remedies available for the tort of breach of statutory duty are the same as for tort generally, subject to the intention of the relevant statute. Where the legislation itself provides a remedy, the question may arise whether it is tended to be additional to the general remedies available under the law or instead of them. Where the legislation provides a remedy but there is no express or implied indication as to whether other remedies are also available, there is a prima facie presumption that it is intended to be the only one available. This presumption will not always exist and the question depends in each case on the construction of the enactment concerned. Given this, we think that it is not necessary to specify that compensation is available; it could, in fact, unintentionally limit the court’s powers.

Amendments 49 and 52, tabled by my noble friend Lord Sandhurst, seek to allow the employment tribunal to determine claims brought by academic staff members under the new statutory tort and to make dismissal for exercise of academic freedom automatically unfair. The consequential amendment removes the qualifying period for unfairly dismissed academics and the cap on the compensatory award, and it allows the tribunal to order interim relief. The Bill does not prevent academic staff bringing claims before the employment tribunal, which may take into account a breach of the freedom of speech and academic freedom duties, if it is relevant to a claim before it. Under the current employment law framework, the two-year qualifying period for unfair dismissal is intended to strike the right balance between fairness for employees and flexibility for employers, to ensure that employers are not discouraged from taking on new staff. Where an employee does not have two years’ service, it is still possible to bring a claim for wrongful dismissal in the civil courts.

In answer to the noble Baroness, Lady Falkner, in particular, the Bill in fact broadens the range of people covered by the existing freedom of speech duties to ensure that all staff within a provider, college or students’ union have protections and can seek redress where duties are breached. The new duties give particular protection to academic staff, including those who may not have employee status or have been employed for less than two years. It therefore broadens the scope of the current provision to ensure that visiting fellows, for example, have the freedom to research and teach on issues that may be controversial or challenging without the risk of losing their post, privileges or prospects.

The Bill gives specific jurisdiction to the courts to consider claims for breach of a statutory duty, as well as setting up a new complaints scheme. I say to my noble friend Lord Willetts that we think that this is a proportionate approach. Academic and non-academic staff will have sufficient routes for redress, without the need to amend employment law as proposed.

Amendment 50, also tabled by my noble friend Lord Sandhurst seeks to make clear in the Bill that the tort should be only a remedy of last resort and that individuals should first exhaust the free route of redress of the Office for Students complaints scheme. Under the amendment, the court would be able to stay the claim on the application of the defendant. We expect that most complainants will choose to use the complaint scheme of the OfS—or students may wish to go to the Office of the Independent Adjudicator for Higher Education—before considering going to court, as no costs are involved in lodging a complaint.

The noble Lord, Lord Grabiner, spoke of mischief-makers. We consider that the tort is unlikely to lead to higher education providers, colleges and student unions having to deal with a large number of unmeritorious claims. A claimant would need to be able to show that the defendant owed them a duty of care, and they would need to point to a genuine loss that they had suffered as a result of a breach of the freedom of speech duties, as I described. In the case of an unmeritorious claim, the claimant would struggle to make their case. In addition, an unmeritorious claimant would risk having to pay substantial legal costs as a result, not only their own but potentially also the legal costs of the defendant. This, together with the availability of free routes for seeking redress, means that we expect the tort will likely be used only as a backstop.

Lord Grabiner Portrait Lord Grabiner (CB)
- Hansard - - - Excerpts

Does the Minister think it appropriate that there should be left in place two possible routes for a complainant—a regulatory route and a Clause 4 route—without there being any guidance whatever in the legislation as to who should or should not go first? At the moment, the Minister is saying, by way of assertion without a scrap of evidence to support it, if I may respectfully say so, that the expectation is that people will use the regulatory procedure first if they are going to make a complaint. At the moment, the legislation does not cater for that problem. Is he satisfied with that?

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, I hope the noble Lord will accept from me that I am not impervious to the points made by noble Lords from around the Committee on that issue, including the very powerful points that the noble Lord himself made. I will come in a minute to the position I have reached as a result of this debate.

It may be helpful if I just explain first, though, that we should note that, to complain to the OIA, the complainant must generally have first exhausted the provider’s internal complaints process; the same is likely to be the case for the OfS scheme. We anticipate that, in any event, where an alternative dispute resolution procedure is available, the court will be slow to engage with issues arising from the same subject matter, unless and until that procedure has been given reasonable time and opportunity to run to a conclusion. If an individual wishes to bring a tort claim before then, they should provide the court with good reasons for doing so, but that will be a matter for the courts to determine.

However, I have heard the concerns expressed by noble Lords, as well as in the other place, about exhausting other remedies and about the tort generally. We take these concerns seriously and will consider carefully whether anything can be done to address them. I am also happy to discuss the issue of who can bring a claim with the noble and learned Lord, Lord Etherton, if he still considers an amendment along the lines of his amendment necessary.

--- Later in debate ---
Lord Grabiner Portrait Lord Grabiner (CB)
- Hansard - - - Excerpts

I apologise: it is probably my fault because I did not convey the point of the noble and learned Lord, Lord Hope, as clearly as I could, and perhaps should, have done, and certainly not as clearly as he inevitably would have. It is not about the earlier 1980s legislation; the fact is that the Bill, if it becomes law, will contain brand-new statutory duties. It is those duties that, if broken, would give rise to the course of action we are talking about.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I am grateful to the noble Lord. I shall reflect on that point and write to him, if he will allow me to clarify the Government’s position in that way.

I have already set out how we envisage the tort will operate, so I will not repeat that. Suffice to say that, in the view of the Government, the statutory tort will provide an important legal backstop by giving individuals a specific right to bring a claim before the courts. This could include a number of people in different situations. For example, and purely by way of example, it could include students expelled from their course because of their views; organisers of an event that is cancelled, having incurred costs in the process; and a visiting speaker disinvited at the last minute, with the accompanying media furore and perhaps damage to feelings and reputation. There are other instances I could give. Noble Lords who wish to remove this clause need to be comfortable about removing a backstop provision that could offer a remedial route to certain individuals, such as those I have mentioned.

I hope I have been able to set out why we believe that this clause fulfils a duty that we surely owe to those who believe that their legal rights in this area have been infringed.

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
- Hansard - - - Excerpts

A number of noble Lords referred to the chilling effect and the Minister did not really cover that point. He keeps talking about this being a backstop, but if its effect is to prevent the invitations and stop the debate, what does he think about that chilling effect? It has completely the opposite effect to what he has been speaking about.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

The point the noble Lord, Lord Collins, makes goes hand in hand with the point that I would like to reflect upon. The issue raised by a number of noble Lords was the sequence of events: whether the Bill should make clearer that the complaints process should have first been exhausted before a recourse to the courts is made. So if I may I will consider the noble Lords “chilling effect” point in that context, as well as in the context of the overall clause, and write to noble Lords accordingly.

Lord Macdonald of River Glaven Portrait Lord Macdonald of River Glaven (CB)
- Hansard - - - Excerpts

My Lords, perhaps I might ask the Minister to consider this. He mentioned earlier in his remarks that the question of pressure groups was not really relevant because they would not be an entity to which a duty of care was owed. The problem with pressure groups is their willingness to fund litigation on the part of other people: I think that is the relevance. Would the Minister care to reflect on that?

--- Later in debate ---
Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

I take that point absolutely. I was not seeking to say that someone well funded by a pressure group could not, in certain circumstances, have recourse to the courts. It was simply a point made about pressure groups in themselves.

Lord Etherton Portrait Lord Etherton (CB)
- View Speech - Hansard - - - Excerpts

I am very grateful to the Minister for dealing with the range of issues that have arisen. So far as my own amendment is concerned—as I have made clear in the past—it is very poor drafting to leave out major provisions that should be going into the Bill and leave it to a statement of the Minister at the Dispatch Box or to be found in the course of reading the Explanatory Notes. I do think my amendment should be put into a proper form in the Bill itself, if necessary by a government amendment.

If, as I think the Minister referenced, it is envisaged that the courts will be able to give remedies other than compensation, again, that is a very important consideration. I would want to consider very carefully whether it is appropriate for the courts to have to find a suitable remedy other than damages in a particular case, so I would very much welcome an appropriate amendment that we could all see if this provision is to remain in the Bill. Subject to that—and I am very happy to have meetings with the Minister to discuss these matters—I beg leave to withdraw my amendment.

--- Later in debate ---
Baroness Thornton Portrait Baroness Thornton (Lab)
- View Speech - Hansard - - - Excerpts

My Lords, I shall speak to Amendment 61 in the names of my noble friends Lord Collins and Lord Blunkett, and say to the Minister that this group of amendments is striving to make sense out of something. I read this clause several times over the weekend and found it very puzzling and complex. The Minister needs to look at this amendment and the complete complaints procedure again. I am very struck by the words of the noble Baroness, Lady Garden: it imposes costs, but where are the benefits?

The amendment of my noble friend Lord Triesman has tried to impose order on a very confusing clause. It may not be perfect but he is initiating a useful discussion. Every amendment in this group seeks to clarify and modify how the complaints procedure might work. As the noble Lord, Lord Willetts, said at the opening of this debate, the complaints procedure is not clear.

My noble friend’s amendment would ensure that free speech complaints are considered alongside other competing freedoms, such as the Equality Act 2010 and the Counter-Terrorism and Security Act 2015, and that the Government should specify in guidance how that should happen. We have been raising issues around the compatibility of this Bill with those Acts all the way through this discussion and we are raising it again in relation to the complaints procedure.

I will not add any more to that. I think the Minister—the noble Earl or the noble Baroness—will need to address all these amendments, including ours, because, as it stands, this is not a satisfactory clause at all.

Baroness Barran Portrait The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
- View Speech - Hansard - - - Excerpts

My Lords, I shall now address the group of amendments that relate to the complaints scheme to be operated by the Office for Students.

Amendment 58, from my noble friend, Lord Willetts, seeks to mandate the provisions set out in paragraph 5(2) of new Schedule 6A on what complaints can or should be ruled out of scope for consideration under the scheme. Amendment 59 seeks to mandate that the OfS must dismiss “frivolous or vexatious complaints”, with the intention of reducing the potential bureaucratic burden on the OfS and higher education providers.

The current drafting’s use of “may” rather than “must”, as highlighted by the noble Lord, Lord Grabiner, is intentional. The wording is derived from the Higher Education Act 2004, which established the student complaint scheme of the Office of the Independent Adjudicator for Higher Education. This is the usual drafting approach when setting up a new body or new scheme in legislation, allowing for the decision-making body to have discretion in setting out the detail.

New Schedule 6A sets out the bones of the new scheme but it will be for the OfS to provide the detailed rules. The OfS needs the discretion to determine which rules should apply, looking at the scheme in the round. The noble Baroness, Lady Fox, highlighted some of the reasons why that is important. We anticipate that the Office for Students will consult on the rules, so it will be informed by key stakeholders in the sector. These rules will set out the detail of the type of complaint that the scheme will consider and the process to be followed.

I think we are aligned on my noble friend’s aspiration for coherence—he is smiling behind me; I am not sure whether that is encouraging—but it is a question of where that coherence is established. We respectfully suggest that that should be done in detail in the rules. My noble friend will absolutely be aware that paragraph 5(2)(b) of new Schedule 6A clearly sets out what is within scope for the OfS to decide—whether a free speech complaint should not be referred until the internal procedures are exhausted. We would expect that to be set out more clearly and in more detail when the OfS has gone through this procedure of drafting the rules.

It is also the intention that complaints should be referred under the scheme within a specified time limit. In the case of the OIA, the time limit is 12 months from the date on which the higher education provider tells the student its final decision. The OfS may well decide on a similar provision, but that is a level of detail for it to determine; it is too specific to be included in primary legislation. It is not necessary to mandate that there should be a time limit, as the OfS will want and need to include this as a matter of good administration. The OfS will also set out rules on how it will deal with frivolous or vexatious complaints for the reasons that the noble Lord, Lord Grabiner, eloquently exposed.

I know that my noble friend and the Committee more generally will have spotted that we use “must” in a couple of cases in the Bill. That is where it is considered particularly significant, such as in the requirement to make a decision and the need to make a recommendation if the regulator considers a complaint justified where “may not” is used—that is, where we have a prohibition.

Amendment 60, from my noble friend, Lord Sandhurst, seeks to confirm in the Bill that the OfS has the power to determine whether a provider has breached its freedom of speech duties. My noble friend is right to think carefully about how the complaints scheme will work.

My noble friend mentioned the Court of Appeal decision in Maxwell and the powers of the OIA. This was about its power to adjudicate on disability discrimination. The court held that it was the OIA’s role to review complaints and consider whether the provider acted reasonably and in a justified way. Here, the Bill sets out the parameters of what the OfS must decide. It is clear that it will have the power to determine whether they consider that there has been a breach of the free speech duties.

The Bill specifies that the OfS must provide a scheme under which it is to review and determine free speech complaints. Such complaints are defined as claims that the person has suffered adverse consequences as a result of the governing body’s action or inaction, and

“claims that, or gives rise to a question as to whether, the action or inaction was a breach of a duty of the governing body under section A1.”

That is at paragraph 2 of new Schedule 6A. Where a complaint is referred under the scheme, the OfS will be required to make a decision as to the extent to which the complaint is justified. As I mentioned earlier in relation to the Maxwell case, this makes it clear that the OfS may determine whether a provider has breached the freedom of speech duties. Indeed, it is a central part of how the complaints scheme will operate.

--- Later in debate ---
Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
- View Speech - Hansard - - - Excerpts

My Lords, I thank the noble Lord, Lord Johnson, for raising this issue, because it is an important thing we should debate. Fundamentally, it is about balance and being proportionate—and, as we have heard, there is also the business case about overreliance on a single source of income. Certainly, if foreign students are coming from one country, as the noble Baroness, Lady Smith, said, clearly there is a risk factor in that.

I will start by saying, as I think the noble Lord, Lord Johnson, was saying too, that foreign students are an important element of our soft power. We should not underestimate how making our universities open to overseas students is an important part of the three Ds of our integrated policy of defence, diplomacy and development. Okay, I hear what the noble Lord, Lord Grabiner, said: often, the people whom we are attracting are a growing part of the wealthy side of society and instead we should be focusing on other areas, particularly in Africa, where we should be encouraging more students. However, when I was a student, I found that many of the overseas students that I became friends with subsequently became leaders of countries and influencers of countries, and we should not underestimate that. So I start by saying that I am very much in favour of supporting overseas students and that universities should continue to encourage them—especially from China. I do not think we should be debating that Chinese students are a bad thing. The Chinese Communist Party is a bad thing, but not Chinese students—we should absolutely be committed to that.

As I said at Second Reading and in other debates, the key to addressing the influence of income on free speech is transparency. I am sympathetic to the idea that there should be a requirement to say just what proportion of income is coming from which areas—that is absolutely right—but I also support the view of the noble Lord, Lord Willetts, that in introducing that element of transparency we should not place burdens on institutions that could inhibit academic research and the commitment to follow through those income streams. When we look at other countries, certainly when it comes to reporting requirements, we are talking about a much higher level than those currently envisaged by the Government.

So it is very important that we address these issues, but I share the concern of the noble Baroness, Lady Smith, that this Bill is not necessarily the appropriate place to do it.

Baroness Barran Portrait Baroness Barran (Con)
- View Speech - Hansard - - - Excerpts

My Lords, I would like to address the group of amendments relating to overseas funding.

Amendments 63 and 64, tabled by my noble friend Lord Johnson of Marylebone, seek to amend the transparency measures concerning overseas income received by higher education providers. They would add tuition fees to the categories of overseas funding in scope and require the OfS to consider whether a provider or college was “overly reliant” on funding from a single country of origin.

Increasing awareness of foreign interference risks in higher education is of course vital. That is why we have already added measures to the Bill that will require the OfS to monitor the overseas funding of registered higher education providers and their constituent institutions so that it can assess the risk that the funding may pose to freedom of speech and academic freedom in the provision of higher education within a given institution. However, we have ensured that the scope of these measures is proportionate to the risk, in order to ensure that our universities remain a place where freedom of speech can thrive.

The Government consider that these further amendments are unnecessary and potentially overly bureaucratic. Providers are already required to submit data to the OfS on course fees by broad domicile, broken down by UK, other EU and non-EU. In addition, international student numbers are reported to the Higher Education Statistics Agency and published online, broken down by country of domicile and by provider. This means that information about international tuition fees is already available to the OfS. If the OfS considered that a provider was overly reliant on student tuition fees—the noble Lord, Lord Collins, talked about the business case for overseas students—it could take steps if it thought that this would threaten the financial sustainability of the provider. That is included in the registration conditions that providers must already comply with. The OfS can issue sanctions for breach of these conditions.

Amendment 65, in the name of my noble friend Lord Willetts, seeks to increase the financial threshold for reporting required by higher education providers under Clause 9. This would require that no less than 1% of the total income of a higher education provider would fall to be reported, thereby reducing the burden of reporting on providers.

For many large providers, 1% of their total income could represent tens of millions of pounds, but I am sure noble Lords will agree that, for example, £1 million would be a very significant amount of money if an individual member of the academic staff received it as a research grant. Amendment 65 would mean that such instances might not fall to be reported.

The aim of Clause 9 is to increase the transparency of overseas funding. The OfS will require providers to supply information to them on relevant overseas funding. Relevant funding is defined as certain specified types of funding received by the provider, a constituent institution or a member or members of staff from a relevant overseas person, where that exceeds a threshold—to be set out in legislation—within a period of 12 months. The current intention is to set this at £75,000 in a 12-month period for providers and colleges.

We recognise that the risk of undue influence arising from smaller amounts of overseas income is likely to be lower. We have therefore ensured that the scope of these measures is proportionate to the possible risk to freedom of speech. We believe that the intended threshold of £75,000 for providers and colleges is appropriate, as it will strike the right balance by increasing the transparency of significant transactions without creating undue bureaucracy by requiring the reporting of smaller transactions that are less likely to pose a risk. The information required is further narrowed in scope, as “relevant overseas person” is a limited category and there will also be countries that are excluded from this provision that will be set out in regulations.

We take the impact on the higher education sector seriously, which is why the Bill includes the measures that I have just described to reduce the level of reporting required. We are therefore ensuring the proper targeting of the measure to the risk to freedom of speech, and that the burden on providers will not be too great.

I now turn to Amendment 66 tabled by the noble Lord, Lord Wallace of Saltaire, and spoken to by the noble Baroness, Lady Smith of Newnham, which seeks to clarify why students’ unions have been included within the scope of the overseas income measure in Clause 9. The overseas funding measures in the Bill seek to increase the transparency of overseas donations and other income received by higher education providers, their constituent institutions and students’ unions to better enable the OfS as a regulator to understand the possible extent of financial leverage from a foreign source, which may influence behaviour to pose a threat to freedom of speech and academic freedom. The information reported will enable the OfS to monitor and report on any sector trends and patterns.

In order for these measures to have the maximum intended effect on countering the threat of foreign interference in higher education and to increase public confidence in the sector, we considered it vital that the overseas funding duties extend to students’ unions, as other measures in the Bill do. Students’ unions across England are in receipt of a variety of overseas income every year and there is diversity across students’ unions in the ways in which they are funded. Information published by the Charity Commission demonstrates that a large number of students’ unions are very reliant on the annual donations and legacies that they receive. Therefore, it would be remiss not to include students’ unions in Clause 9.

The scope of the measure—noting in particular the threshold amount, which we anticipate will be set at an appropriate level for students’ unions—means that the burden on those unions will not be too great and will ensure the proper targeting of the measure to the risk to freedom of speech. I trust I have given reassurance that Clause 9 as drafted offers sufficient and proportionate protection against undue foreign influence on freedom of speech and academic freedom within higher education.

Lord Johnson of Marylebone Portrait Lord Johnson of Marylebone (Con)
- Hansard - - - Excerpts

I am grateful to my noble friend the Minister for her response and to noble Lords for their excellent contributions. I will reflect on the debate and particularly on whether this was the best place for my amendment, which I recognise I have rather contrived to attach to this Bill. In the meantime, I am very happy to beg leave to withdraw it.

--- Later in debate ---
Viscount Stansgate Portrait Viscount Stansgate (Lab)
- View Speech - Hansard - - - Excerpts

My Lords, I support my noble friend Lady Thornton and I support the spirit behind both Amendments 67 and 68, for the following reason. Over the years—you could argue, over the centuries—the balance of power between the Executive and legislature has changed, and it has changed to the detriment of the legislature. Therefore, whenever I see an amendment of the kind proposed in Amendments 67 and 68, which requires that a particular appointment—in this case it is the free speech director but it could be any other important post that arises in legislation—should be subject to the approval of the relevant Select Committee of the House of Commons, I think that is a very good thing. It would be a modest step towards rebalancing the imbalance that I fear is infecting the relations between both Houses of this Parliament, and between us and the Executive. I support the amendments for that reason.

Baroness Barran Portrait Baroness Barran (Con)
- View Speech - Hansard - - - Excerpts

My Lords, I will now address the amendments concerning the appointment of the new director for freedom of speech and academic freedom at the Office for Students. Amendments 67 and 68, tabled by the noble Lords, Lord Collins of Highbury and Lord Wallace of Saltaire, and spoken to by the noble Baronesses, Lady Thornton and Lady Smith, cover similar ground, as the noble Baronesses pointed out. They seek to introduce additional requirements to the process for appointing the new director.

Amendment 67 would require the appointment to be made by an independent panel, established under regulations and confirmed by the Education Select Committee. It would further prevent the appointment of a person who had made any political donations in the last three years and prohibit them from making any donations during their tenure. Amendment 68 would require the Secretary of State to consult Universities UK and obtain approval from the Education Select Committee before nominating the director.

I make it clear that the director for freedom of speech and academic freedom will be appointed in the same way as other members of the OfS board, by the Secretary of State under the Higher Education and Research Act 2017. Although this is not officially a public appointment, it will be done in accordance with the public appointments process, which will ensure the independence of the process. The noble Baroness, Lady Smith, rightly asked how people can be reassured and have confidence in the process, and that is the answer. The involvement of the higher education sector in the appointment through formal consultation would risk threatening the independence of the role. I emphasise that, as has been said in the other place, freedom of speech and academic freedom are fundamental principles in higher education; they are not the preserve of one particular political view.

I point out that one role within the OfS involves appearing before the Education Select Committee as part of the process for being appointed: the chair. No other member of the board, such as the chief executive officer or the director for fair access and participation, requires their consideration or consultation with the sector. It would be inconsistent to make different rules for the director for freedom of speech and academic freedom, and we believe it would set an unhelpful precedent.

Lord Deben Portrait Lord Deben (Con)
- Hansard - - - Excerpts

I am always suspicious when Ministers use the word “inconsistent” to overcome a problem. It is inconsistent because it is different. The particular person here needs to have the confidence of all of us. I was impressed by the comments of the noble Viscount, Lord Stansgate, who made a point that we in this House ought to make very clearly to Ministers: the power of the Executive has increased, is increasing and ought to be diminished. In this case, it does no harm to the Government to say, “What a good idea. Wouldn’t it be a good idea to take some of these concepts and make sure that people have confidence?” I no longer have any confidence in decisions made by Ministers unaffected by Parliament. The noble Viscount, Lord Stansgate, is right, and the word “inconsistent” does not get out of the problem.

Baroness Barran Portrait Baroness Barran (Con)
- Hansard - - - Excerpts

I am sure that my noble friend is right that it does not. He may dislike the word “precedent” as well, but it would set a different precedent for how these appointments are made. When you have a chief executive and a director for fair access and participation who are not subject to that kind of consideration or consultation with the sector, it is fair to ask why this role should be, given that those are also highly important and sensitive roles.

Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
- Hansard - - - Excerpts

Would the noble Baroness feel the same regardless of who was Secretary of State for Education? Is there not a danger that politics could perhaps be seen in the appointment process? Might it not be better to make it as objective as possible? A precedent might actually be the way forward.

Baroness Barran Portrait Baroness Barran (Con)
- Hansard - - - Excerpts

By following the public appointments process, which I hope your Lordships trust, we are endeavouring to make it as independent and objective as possible.

On the noble Baroness’s point about legal training or expertise, I reassure your Lordships that the successful candidate for the role will have been assessed for their understanding of the legal framework concerning freedom of speech and academic freedom, including how this relates to other relevant legislation. Although legal knowledge would be a benefit for the person undertaking the role, the director will be supported by a team of lawyers, caseworkers, board members and others at the OfS to support decisions under these measures. These decisions will legally be those of the OfS and not of the director personally.

Important oversight will also be built into the system once the director has been appointed. The director will be responsible for reporting to the OfS board on the performance of the OfS’s free speech functions. This reflects a similar provision in Schedule 1 to the Higher Education and Research Act 2017, which makes the director for fair access and participation responsible for reporting to the other members of the OfS on the performance of the OfS’s access and participation functions. This will not only ensure oversight of the role of the director for freedom of speech and academic freedom by the rest of the OfS board; it will also allow the OfS to co-ordinate and monitor its free speech functions better.

I therefore confirm that the appointment of the director will be in line with the usual public appointments processes, and there will be ongoing oversight of the role. On the noble Baroness’s question about where we have got to in the appointment, applications for the role closed on 27 July, and we are currently sifting them, after which there will be interviews and an announcement in due course. Given this, I hope that noble Lords will agree that these amendments are not required.

Baroness Thornton Portrait Baroness Thornton (Lab)
- View Speech - Hansard - - - Excerpts

I thank the noble Baroness for that explanation. I also thank my noble friend Lord Stansgate and the noble Lord, Lord Deben, for their comments. We of course support the amendment from the noble Lord, Lord Wallace—I thank the noble Baroness, Lady Smith, for her comments in support.

This is not a satisfactory situation. I suppose we should be quite pleased that the accusation of pre-emption that I made at Second Reading is not happening. I suspect that this is not through design—through deciding to wait until the legislation is on the statute book before making the appointment—but rather through not having got round to doing it yet, which is par for the course in government at the moment. I hope that will change over time, particularly if we have a change of Government.

In a way, this is the most partisan amendment that we on these Benches have put down. It is based partly on the appointment of the chair of the OfS, which was not uncontroversial, because it was a donor to the Conservative Party and someone who made a speech in a gathering of very right-wing European politicians in Hungary, as mentioned in the discussions on the Bill in the Commons and at Second Reading. So, pardon me, but we are a bit suspicious about this appointment.

My point is that made by the noble Lord, Lord Deben: this is a particularly special appointment, and it needs to have the confidence of the whole higher education sector. The Government’s job is to ensure that that happens, and I am afraid that it is not the case at the moment. However, I beg leave to withdraw my amendment.

--- Later in debate ---
Lord Deben Portrait Lord Deben (Con)
- Hansard - - - Excerpts

The noble Lord, Lord Adonis, is always a pleasure to listen to.

As a matter of fact, I am not in favour of this amendment, but I want to ask the Minister a question. One of the reasons I raised the question earlier about public appointments is that the period of time it takes to make any appointment is becoming a scandal. I am still waiting for two appointments to the Climate Change Committee. The meetings of the chairmen of all the organisations always say that they are fed up with trying to run committees in which there are no members because the system takes so long.

Could I have the assurance of the Minister that, under this Bill, an appointment will be made, and made quickly? Will she say to the Government as a whole that, until the system works quickly, we will go on complaining about it? It is not reasonable to have so long a gap. It is not that, for some reason or another, this is not an important appointment—I think that there is a lot to be said for it—but that this problem is true right across the board. The time waiting for appointments gets longer and longer, and the process gets stuck more often than it should.

Baroness Barran Portrait Baroness Barran (Con)
- View Speech - Hansard - - - Excerpts

My Lords, the amendment tabled by the noble Lord, Lord Collins, also in the name of the noble Baroness, Lady Bennett of Manor Castle, would make the Bill subject to a sunset clause, with the Act to expire three years after the date of enactment, unless a report is made to Parliament and regulations are made to renew the Act. It would also allow Ministers to remove provisions of the Bill one year after enactment if they were not working as intended.

My noble friend Lord Deben shared his concerns about the speed of the appointment process. Sadly, I do not possess a magic wand in relation to Defra appointments, but I shall share his concerns with my noble friends in that department. I also take his serious point that, as someone once said, sometimes when it is slow it is because it is being carefully considered, and sometimes it is just slow. We shall leave it to your Lordships to judge.

We do not think it would be right or appropriate to include a sunset clause in the Bill. Equally, it would not be right to allow Ministers to remove provisions by way of regulations after only one year, when Parliament has only recently approved the Act and there will not have been enough time for the Act to bed in. I should note in this context that it will take time to implement the new statutory regime, with a need to make a number of sets of regulations; to appoint the new director for freedom of speech and academic freedom, as the noble Lord, Lord Adonis, reminded us; to draft guidance; to draft and consult on changes to the regulatory framework; and to set up the new complaints scheme. One year would certainly be insufficient to see the effect of the Bill on the ground. A sunset clause for a whole Act would be very unusual, and we see no reason why this Bill should be treated differently from other pieces of primary legislation.

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
- View Speech - Hansard - - - Excerpts

I thank the Minister for her response. I am glad that my amendment has at least given the noble Lord, Lord Deben, the opportunity to be supportive of the Government on this occasion.

Just to pick up on some of the points that have been made, from what the Minister said, it sounds as though, if the appointments process for the director for freedom of speech is anything to go by, it will be at least three years before we see this legislation actually being implemented—and who knows what will have happened in three years’ time?

The important thing that I wanted to stress in moving this amendment is how important evidence-based legislation is. Certainly, a lot of concern has been expressed throughout Committee about the lack of evidence on some of these points. However, I hear what the Minister says, and I am glad that the noble Lord, Lord Deben, has been able to make that contribution at long last. I beg leave to withdraw the amendment.

Higher Education (Freedom of Speech) Bill

(Limited Text - Ministerial Extracts only)

Read Full debate
Report stage
Wednesday 7th December 2022

(1 year, 11 months ago)

Lords Chamber
Higher Education (Freedom of Speech) Act 2023 Read Hansard Text Watch Debate Amendment Paper: HL Bill 30-R-I Marshalled list for Report - (5 Dec 2022)

This text is a record of ministerial contributions to a debate held as part of the Higher Education (Freedom of Speech) Act 2023 passage through Parliament.

In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.

This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here

This information is provided by Parallel Parliament and does not comprise part of the offical record

Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
- View Speech - Hansard - - - Excerpts

My Lords, I thank the noble and learned Lord, Lord Hope, for introducing this group. When we were discussing these points in Committee, what prompted me to support him was how we should try to future-proof this legislation, particularly where there was speculation about human rights definitions and things that might lead to other changes. I therefore also welcome the Government’s own amendments. They are extremely helpful, and we welcome them in relation to this issue. I must admit that I am quite happy to support a third way. It has been part of my political tradition to do so, so I will support that.

I come to Amendment 6 in my name. We had an extremely positive exchange about how we protect these freedoms and stop a nasty practice of non-disclosure agreements inhibiting free speech. I am extremely pleased that the Government have signed the amendment and agreed to support it. I also appreciate all the discussions I have had with the Minister, whom I thank very much.

Baroness Barran Portrait The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
- View Speech - Hansard - - - Excerpts

My Lords, I would like to address the group of amendments concerning the free speech duties. As your Lordships have already noted, we had an important debate on these issues in Committee which sought to bring clarity and consistency both to the definition of freedom of speech and what the Government mean by “within the law”. Our amendments seek to address the first of these points. I hope that my remarks will cover the latter. I am disappointed that my noble friend Lord Moylan still thinks we are muddled on this issue; I will do my best to bring a little clarity.

Amendment 7 amends the provision in new Section A1(11), which currently sets out what freedom of speech as referred to in this Bill includes. The amendment refers to the

“freedom to impart ideas, opinions or information …by means of speech, writing or images (including in electronic form)”.

This wording is derived from Article 10(1) of the European Convention on Human Rights, which is also used in the Bill of Rights Bill. This was a particular concern of the noble and learned Lord, Lord Hope. There is also a reference to Article 10(1) of the ECHR as incorporated by the Human Rights Act 1998. This has been carefully drafted to reflect the fact that the freedom of speech in this Bill is a broader concept than freedom of speech in Article 10 because students’ unions are not public authorities and are not subject to the ECHR.

The other amendments are consequential. For example, they refer to “ideas or opinions” in certain provisions rather than “ideas, beliefs or views”. That is to reflect Amendment 7 and is not intended to change its meaning. I will comment on the phrase “within the law” when I respond to the noble and learned Lord’s Amendment 10.

As your Lordships are aware, these amendments are in response to Amendment 1, which was moved and eloquently explained by the noble and learned Lord, Lord Hope of Craighead. This is similar to our amendments, but we have some issues with it. The wording is from the Bill of Rights Bill, but this amendment would cause difficulties if inserted into this Bill. First, as I have already said, it is not right regarding the application of Article 10 to students’ unions. Secondly, it refers to the “right” to freedom of speech, which would lead to new Section A1(2), a duty to take steps to secure an individual’s freedom of speech—by which we mean the exercise of that freedom—instead being a duty to take steps to secure an individual’s right to freedom of speech. This is not what is intended in the Bill.

Regarding consistency with the Online Safety Bill, that Bill does not refer to freedom of speech but rather to the wider concept of freedom of expression. My sense was that the noble and learned Lord is not planning to press this amendment. I hope he will accept that the government amendment answers his concerns and those of the other signatories to Amendment 1.

Amendment 10, also tabled by the noble and learned Lord, seeks to define “within the law” as regards freedom of speech under the Bill. This Bill does not change an individual’s right to freedom of speech. That right is established in common law and under Article 10 of the ECHR, as incorporated into UK law by the Human Rights Act. People are free to say what they want, so long as their speech is not prohibited under the law. As the noble and learned Lord explained, the right to freedom of speech is a qualified right, meaning that, for example, there is no right to incite racial hatred or to harass others. I am aware that my noble friend Lord Moylan is concerned that freedom of speech is perhaps becoming more qualified by some of the restrictions set out in Article 10(2) but that is beyond the scope of this Bill which does not change how Article 10(2) applies.

This Bill does not change what is or is not lawful under UK law; that is for other legislation to do. The reference to

“freedom of speech within the law”

in new Section A1(2) simply means freedom of speech that is lawful. It might be helpful to note that we do not understand there to be a legal duty

“to respect the rights of others”,

as specified in the amendment.

--- Later in debate ---
Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
- View Speech - Hansard - - - Excerpts

My Lords, I am grateful to all those who have spoken in this short debate and, in particular, to the Minister for her explanation.

If I may concentrate particularly on government Amendment 7, it achieves my main purpose in my Amendment 1 to avoid the suspicion that, when you talk about freedom of expression in this Bill, you are talking about something quite different from what is referred to in Article 10 of the convention. The reference here makes it clear that we are talking about the same thing.

Baroness Barran Portrait Baroness Barran (Con)
- Hansard - - - Excerpts

I think I heard the noble and learned Lord say “freedom of expression” in this Bill, but I think he meant to say “freedom of speech”.

Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
- Hansard - - - Excerpts

Yes—I have got them the wrong way round, as I frequently do. But it does not really matter, because we are talking about the same thing, which is the particular problem that I was concerned with.

I have great respect for the noble Lord, Lord Moylan, with whom I had a very deep and interesting discussion. I must confess that I do not have the same concern as he does about the reference to Article 10(1) only in the definition that the Government are proposing. If we read on beyond that reference, it says

“Article 10(1) of the Convention as it has effect for the purposes of the Human Rights Act”.

The way in which you work out its effect is to read on to paragraph (2). I therefore think that, in short and very subtle terms, it achieves the very point. I do not really agree with the noble Lord’s concern, which I think is met by those particular words “as it has effect”.

For these reasons, and with thanks to the Government for their willingness to come forward as far as they have done, I withdraw Amendment 1.

--- Later in debate ---
Moved by
2: Clause 1, page 2, line 4, leave out “, beliefs or views” and insert “or opinions”
Member’s explanatory statement
This amendment is consequential on the Minister’s proposed new definition of “freedom of speech” (see the amendment to Clause 1, page 2, line 36 in the Minister’s name).
--- Later in debate ---
Lord Collins of Highbury Portrait Lord Collins of Highbury (Lab)
- View Speech - Hansard - - - Excerpts

I will be very brief. There is a danger of this debate widening out too far. In Committee, I advocated to the Minister the UNESCO definition of academic freedom. Of course, there is always that confusion between academic freedom and freedom of speech. I was assured by the Minister in Committee, so I was satisfied with what the Government were saying. I hear what the noble Lord says about quality, but standards of teaching and research are a very important element of our universities; we should not forget that. We should not promote one argument and then undermine the very thing that our universities are very popular for globally. We do not support this amendment. We agreed with what the Minister said before and I look forward to his response today.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, as we have heard, the amendments in this group relate to the important issue of academic freedom. I turn first to Amendment 4, tabled by the noble Baroness, Lady Fox of Buckley, which seeks to amend the definition of academic freedom set out in new Section A1 to make it explicit that academics can voice opinions about the institutions where they work, without fear of adverse consequences.

In responding to a similar amendment tabled in Committee by my noble friend Lord Strathcarron, to which the noble Baroness also put her name, I clarified, as the noble Lord, Lord Collins, kindly mentioned, that the definition of academic freedom as currently drafted already covers the questioning and testing of received wisdom, and the putting forward of new ideas and controversial or unpopular opinions. This speech is not limited to particular subjects, so it would include speech concerning the institute at which an academic works. The Bill will therefore already protect the freedom of academics to put forward opinions about the curriculum content adopted by their provider or third-party organisations with which the provider is affiliated.

As the noble Baroness highlighted, there is a reference in the explanatory statement to the UNESCO recommendation. It may be helpful for me to put on record that the Bill as drafted protects academics in a number of the ways listed in that recommendation. Specifically, it protects the rights to freedom of teaching and discussion; freedom in carrying out research, and disseminating and publishing the results thereof; freedom to express freely their opinion about the institution or system in which they work, as I have already said; and freedom from institutional censorship. However, the Bill does not cover conduct which is not speech, such as the act of affiliating with or joining an organisation.

The noble Baroness also referred to the 2015 case of Kharlamov v Russia, and I can confirm the essential features of the case that she set out. Mr Kharlamov was a physics professor who said during a conference that he was unhappy with the nominations process for candidates to the academic senate. The university sued him for defamation. The European Court of Human Rights in due course found in his favour on the basis that the Russian courts failed to fairly balance the relevant interests and establish a pressing social need for protecting the university’s reputation over the claimant’s freedom of expression. I hope that, in the light of what I have said, noble Lords are reassured that this amendment is not in fact needed.

Amendment 5 tabled by the noble Lord, Lord Wallace of Saltaire, seeks to probe the workability, as he put it, of new Section A1(7)(b) in Clause 1. Taken at face value, it would amend the definition of academic freedom so that it would no longer specify that an academic should not be put at risk of a reduced likelihood of their securing promotion or different jobs at the provider. I realise that it is a probe. It is correct that this provision is not included in the existing legislative definition of academic freedom in the Higher Education and Research Act 2017 and the Education Reform Act 1988. However, we want to be clear in the Bill that academic staff should be protected in as expansive a way as possible—so not only from losing their job or privileges, but from being less likely to secure promotion or a different job at the provider. If we do not specify that these are also covered, there may be only partial protection. A person might not be fired but might be held back in their career, by not being promoted or given another role at the provider because of something they have said.

As I mentioned, the noble Lord wants to know how this provision will work in practice. An academic will of course need some evidence to support a complaint that they have been wrongly held back because of their views. They may have been told by a colleague the reason why they have not been promoted. There may be notes from an interview that suggest why this is the case. There may be an email which makes this clear. In the face of such evidence, the question will then be whether the provider has failed to comply with its duties under the Bill. I note the noble Lord’s point about the OfS guidance and I will ensure that the OfS also does so. This is the way that evidence in employment law is often presented. It is not new, nor is the concept of protection from not being promoted, since that can be a matter leading to constructive dismissal, which has been a feature of employment law for some time.

I hope that this explanation reassures the noble Lord that this is an important aspect of academic freedom in the context of freedom of speech, and that he agrees that the provision will protect academic staff to the fullest extent.

Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
- View Speech - Hansard - - - Excerpts

I really appreciated the comments of noble Lords in this short debate. I want to stress a couple of things. This is not about the rights and wrongs of any particular examples I gave; it is perfectly legitimate if people want to support decolonisation or critical race theory, for example, but the point is that it is not imposed. I am also concerned about an ideological conformity that stifles the sort of professional exchanges that the noble Lord, Lord Wallace of Saltaire, was advocating.

I was bemused when the noble Lord suggested that I was almost stuck in some social science nightmare. As the noble Lord, Lord Patten, pointed out, it is precisely the fact that this has now been extended into the hard sciences that may wake up even the noble Lord, Lord Saltaire, to the problems, as perhaps he should look quite closely at the decolonisation of physics, computing or mathematics. The noble Lord, Lord Patten, was right when he said, “Why does everybody not just leave the QAA?” In many instances during the discussions in this House, people talk as though we all run colleges. The problem is, if you are an academic in a college where the college vice-chancellor or principal does not resign from the QAA but rather likes it or cites it, what do they do? I hope everybody tears up their QAA membership because of this, but what if they do not?

The noble Lord, Lord Hunt of Kings Heath, really explained what is at stake here. I was avoiding mentioning Stonewall but, in a way, that is what got me interested in this very thing. It has become compelled speech for individual academics who are told that because of the institutional values that the university has signed up to—for example, around the compulsory use of pronouns and/or a particular attitude to biological sex versus trans identity rights, and so on—if you do not agree, you are open to being accused of bigotry and sent on mandated courses. I was not joking; individual members who criticised the music decolonisation were indeed put under huge pressure by people at the university to go along with this. I said “the university” but I do not always understand the institutions and it is fair enough if the noble Baroness, Lady Royall, wants to correct me.

I will finish with this point. I mentioned the Architects Registration Board. We are in a situation whereby a statutory body that the Government are involved in says that all architecture academics must teach all levels of architecture the realities of the ecological crisis. That is a national curriculum by the back door. It is a difficulty that has to be recognised. I want to take the reassurance of the Minister, who said, “Don’t worry, it’s all taken care of”, but, as the noble Lord, Lord Moylan, explained, references to and uses of these international examples can only strengthen the message, with which the Minister seems to agree, about the legal obligations on university management not to allow these kinds of things to get in the way of academic freedoms. It would be a great reassurance to individual academics to know that this is what the Bill wants to do and to see it spell it out. What harm could it do?

Although I will withdraw my amendment at this point, I do not want the Minister to become complacent. This is a really big, serious contemporary issue that must be taken on board by the Government—indeed, whoever is in government.

--- Later in debate ---
Moved by
7: Clause 1, page 2, line 36, leave out from “speech” to end of line 38 and insert “are to the freedom to impart ideas, opinions or information (referred to in Article 10(1) of the Convention as it has effect for the purposes of the Human Rights Act 1998) by means of speech, writing or images (including in electronic form);”
Member’s explanatory statement
This amendment proposes a new definition of “freedom of speech” referring to the European Convention on Human Rights, as it has effect for the purposes of the Human Rights Act 1998.
--- Later in debate ---
Moved by
9: Clause 1, page 2, line 38, at end insert—
““member”, in relation to a registered higher education provider, does not include a person who is a member of the provider solely because of having been a student of the provider;”Member’s explanatory statement
This amendment excludes those who are members of the provider, solely due to having been a student of the provider, from being a “member” of the provider for the purposes of Part A1 of the Higher Education and Research Act 2017.
Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, government Amendments 9, 12 and 31 are officially classed as “minor and technical” although I would not want to downplay their significance. They will clarify that the term “members” in the Bill does not include a person who is a member solely because of having once been a student of a provider or constituent institution. The term “members” is intended to include those who are not technically staff but are closely involved in university life, in particular members of the governing councils of universities and retired academics who are emeritus professors.

However, the noble Lord, Lord Wallace of Saltaire, tabled amendments in Grand Committee with the intention of probing the meaning of “members” in the Bill; the noble Baroness, Lady Smith, spoke on his behalf. During the debate, several noble Lords expressed concern at the use of the term “without qualification”, as some registered providers and colleges treat their students as members for life. After the debate, my officials looked into the matter and confirmed that this is the position in the case of, for example, the University of Cambridge.

As a result, the Government have tabled these amendments to clarify that alumni of providers and colleges are not covered by the Bill. It is not our intention that providers and colleges should have duties that extend so widely, even to people who have no current relationship with them other than as ex-students. I should make it clear that, if a current student’s freedom of speech is wrongly interfered with, they may still make a complaint even after they have left university. These amendments do not affect that. I am grateful to the noble Lord, Lord Wallace, and the noble Baroness, Lady Smith, for initiating in Grand Committee the discussion that brought this issue to light; I hope the House will agree that these amendments are necessary.

Amendment 24, as tabled by the Government, will distinguish between new functions imposed on the Office for Students by the Bill. It will amend the power in new Section 69A(2), in Clause 5, so that it refers to “how to support” freedom of speech and academic freedom, rather than “the promotion” of these values.

My noble friend Lord Willetts tabled some amendments to Section 69A in Grand Committee. When my officials considered these, it came to light that the wording of this provision might cause some confusion. This is because it refers to

“the promotion of freedom of speech and academic freedom”.

That wording replicates Section 35 of the Higher Education and Research Act 2017, which provides that the OfS may

“identify good practice relating to the promotion of equality of opportunity, and … give advice about such practice to registered higher education providers”.

--- Later in debate ---
Lord Grabiner Portrait Lord Grabiner (CB)
- View Speech - Hansard - - - Excerpts

My Lords, I have just a very brief point. I welcome, in particular, the amendments brought by the Government in relation to the meaning of the word “member” in this context. That is an extremely sensible development in the drafting of the Bill. All that I would say is that, certainly in Cambridge, there is not simply an adoption of the assumption that alums are known as members, but that fact is frequently recorded in the statutes of the particular college. It may well be worth reflecting this amendment in the code of practice in due course, so that there can be absolute clarity that the Bill makes this important distinction between what the college statute may say and what the legislation says.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, I thank the noble Lord, Lord Grabiner. I think that is an extremely helpful suggestion which I will ensure is duly noted.

Amendment 9 agreed.
--- Later in debate ---
Baroness Thornton Portrait Baroness Thornton (Lab)
- View Speech - Hansard - - - Excerpts

My Lords, we have had a thorough exploration of the issues that would face student unions as a result of the passage of the Bill. Amendment 16 in the names of my noble friends Lord Collins and Lord Blunkett and me, with the support of the noble Lord, Lord Wallace of Saltaire, is not intended to be patronising. It seeks to ask the Government whether they will ensure that the guidance to student unions gives young people all the help and support it can to carry out the duties and responsibilities that the Bill will impose on them. Some of them will be 17, 18 or 19 years old, and this will be something they are absolutely unfamiliar with. That is really all that one needs to say about Amendment 16.

I agree that Amendments 11, 15 and 25 are probably not appropriate for the Bill. As somebody who has been a moderately successful heckler myself, I think they certainly should not be in the Bill.

Baroness Barran Portrait Baroness Barran (Con)
- View Speech - Hansard - - - Excerpts

My Lords, I will address this group of amendments relating to codes of practice and the guidance under the Bill. I thank all noble Lords for their thoughtful and considered remarks.

Amendments 11 and 15 tabled in the name of the noble Lord, Lord Hunt of Kings Heath, would require higher education providers, colleges and student unions to include in their codes of practice specific measures

“to ensure that a person is not prevented from speaking by attempts to drown out or silence a speaker”.

Amendment 25 would require the Office for Students to include in any guidance it issues under new Section 69A, in Clause 5 of the Bill, guidance on such measures.

The purpose of the Bill is to protect freedom of speech within the law. As part of that freedom, individuals have the freedom to speak on topics of their choice, as well as to engage in peaceful protest against such speech, as the noble Lord clearly stated. These aspects of freedom of speech both need to be protected. The Bill does not give priority to one individual over another. This means that providers, colleges and student unions must take “reasonably practicable” steps to ensure that speakers who are speaking within the law, as well as those who wish to protest in disagreement with those views, are able to speak—and are not, in the noble Lord’s words, forced to stand by passively.

I should be clear that the Bill means protest in the form of speech, writing or images, including in electronic form. It does not include, for example, tying oneself to a railing or blocking a street—activities that are not speech and therefore not covered by this legislation, but are clearly covered by other legislation.

I reassure your Lordships that we expect event organisers to plan for what to do in the event of disruptive protests. The duty to take “reasonably practicable” steps does not mean that such disruption has to be tolerated. In fact, the duty to take such steps, as regards the speaker at the event, means that action should be taken to deal with such disruption. That might mean that security should be provided or that a protest outside a venue should be set back sufficiently from the windows.

The codes of practice are already required under the Bill to set out “the conduct required” of staff and students in connection with any meeting or activity on the premises. I hope that addresses the question from the noble Lord, Lord Triesman, about whether this applies to individuals. These amendments are not necessary as the issue is already covered by the Bill.

Equally, we expect the OfS to consider these practical issues and to provide advice about how providers, colleges and student unions can fulfil their duties, as well as share best practice that they identify—again, a point raised by the noble Lord, Lord Hunt of Kings Heath.

I trust that your Lordships are reassured by what I have said about how the Bill will operate and will agree that these amendments are not needed.

Amendment 16 tabled by the noble Lord, Lord Collins of Highbury, seeks to ensure that clear guidance is issued by the Secretary of State within three months of the passing of the Bill to help student unions to comply with their new duties. The publication of guidance for student unions is already covered by the Bill. Section 75 of the Higher Education and Research Act 2017 is amende