Ethnicity Pay Gap

Debate between Baroness Thornton and Baroness Barran

Thursday 25th April 2024 Lords Chamber

[Baroness Barran (Con)]

I thank the noble Baroness for her Question. As she will understand, this is a much more complicated area to get meaningful data on. There are five broad categories of ethnicity that are used by the ONS, for example, and 19 specific ethnicities. The Government’s concern is that there is a real risk of misleading data, particularly among smaller firms that may have very few members of staff from a minority community, and therefore a change in one or two people could distort the figures.

[Baroness Thornton (Lab)]

My Lords, Labour has a long-term plan to tackle racial inequality after the longed-for general election, if we are elected, including through our racial equality Bill, which will require large companies to report on their ethnicity pay gaps, as they already do for gender pay gaps. I know that the Minister is absolutely committed to equalities. As a common-sense way to begin the process of tackling these glaring inequalities, we would not mind at all if she would commit to this policy and persuade her Government to support it.

[Baroness Barran (Con)]

I will give a couple of examples. First, there was the work the Government did in 2019, when we engaged with a broad range of businesses to understand the complexities of implementing mandatory reporting in this area. It genuinely showed just how complicated it was to do. That was echoed in the Inclusive Britain report chaired by my noble friend Lord Sewell, which brought out a number of points including, critically, the difference between the ethnicity pay gap of those born in this country and those who are not born here, with which I am sure the noble Baroness is familiar.

Earnings: Mothers and Fathers

Debate between Baroness Thornton and Baroness Barran

Wednesday 13th March 2024 Lords Chamber

[Baroness Barran (Con)]

The Government have made tremendous strides, particularly in relation to the national living wage and the increases that we have seen in that in real terms since the Government came to power in 2010.

[Baroness Thornton (Lab)]

My Lords, the Minister and I both know what the law says about pregnancy and maternity, but the facts are that 54,000 women a year lose their job because they are pregnant and another 390,000 working mums are discriminated against or experience negative treatment, and these numbers have doubled in the last decade. On these Benches, we have a plan to deal with unfair dismissal, denial of flexible working requests and a failing parental leave system; “modest” is a very kind way of describing the Government’s parental leave system. Do the Government have a plan, and in what timeframe?

[Baroness Barran (Con)]

I have touched already on issues of maternity and pregnancy discrimination. The Government have already extended legal protections on redundancy and the DBT’s Pregnancy and Maternity Discrimination Advisory Board is ensuring that all our guidance is clear and fit for purpose.

Gender Recognition (Approved Countries and Territories and Saving Provision) Order 2023

Debate between Baroness Thornton and Baroness Barran

Tuesday 12th March 2024 Grand Committee

[Baroness Barran (Con)]

My Lords, I thank all noble Lords for participating in this short debate. I accept that the views expressed by the noble Baroness, Lady Barker, come from her own perspective, but her description of this Government’s records on human rights is not something that I recognise personally. I hope that, in my opening remarks, I was able to provide the Grand Committee with some clarity on the purpose and effects of this legislation.

I will try to take some of the questions from the noble Baroness, Lady Thornton, in turn. She asked about our international engagement and how other countries would be aware of these changes. Diplomatic posts have been notified of the changes. We provided them with comprehensive question and answer documents that address potential misconceptions about what this statutory instrument does. We have worked very closely at ministerial and official levels with the Foreign, Commonwealth and Development Office throughout the process, and we are monitoring the international reaction to the legislation.

The noble Baroness remarked on the delay in this work. I can only agree with her that it is overdue. We have delivered on other commitments, such as the reduction in the fee. There is no firm date for the next update of the list; we have said that we will review it frequently.

The noble Baroness also asked about how we are applying the criteria. As outlined in the Explanatory Notes to Section 2(4) of the Gender Recognition Act 2004, we have determined the phrasing “at least as rigorous” to mean, in this instance, that the criteria must match the UK legal gender recognition process. This has been applied consistently across every country and territory. Where there have been equivalences that are compliant with the UK system, we have acknowledged those, too. The full list of criteria used for this update can be found in the Explanatory Memorandum to the draft order on the legislation section of GOV.UK.

My noble friend Lord Henley asked specifically about Iran. The detail that we have on the Iranian legislation is that it goes beyond our criteria. He asked whether we had reviewed that; my assumption is yes, but if there is anything different from that, I will write to him to clarify.

The noble Baroness, Lady Thornton, asked about the impact on outstanding applications that are in process. This is not retrospective so, if people have started the process and were eligible formerly, they would still be granted a certificate.

The noble Baroness asked about the feedback from Northern Ireland and Scotland. Obviously, we had to consult with them ahead of laying the instrument. There was no comment from the Northern Ireland Administration, and the Scottish Administration had some criticisms of the Government’s approach, which is perhaps unsurprising given their approach to this issue.

I think I have answered most of the noble Baronesses’ questions, but we will check in Hansard and—

[Baroness Thornton (Lab)]

What about Germany?

[Baroness Barran (Con)]

The legislation in Germany has not yet been passed. The noble Baroness alluded to this—forgive me; it was on my list.

As a team within the equalities hub, we remain very open to discussing these topics and some of the wider policies that both noble Baronesses raised.

Gender Pay Gap

Debate between Baroness Thornton and Baroness Barran

Tuesday 27th February 2024 Lords Chamber

[Baroness Thornton]

To ask His Majesty’s Government what plans they have to speed up progress on closing the gender pay gap.

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

My Lords, the gender pay gap has fallen by approximately a quarter in the last decade. It was a Conservative Government who introduced gender pay gap reporting, building on the robust equal pay protections already in the Equality Act. This has motivated employers to look at their pay data and improve workplace equality. To accelerate progress we have supported legislation to enhance flexible working, extend redundancy protection for those on maternity leave and introduce carers’ leave.

[Baroness Thornton (Lab)]

I thank the Minister for that Answer and particularly welcome the flexible working initiative. Given those endeavours, have the Government made any assessment of how quickly we might bring forward the expected date of 2044 for getting to equal pay? I invite the Minister to support the Labour policy that we should enshrine in law a full right to equal pay for black, Asian and ethnic-minority people, and disabled people, phasing this in to help employers. Does the Minister think that is a good idea?

[Baroness Barran (Con)]

In response to the noble Baroness’s first question, as she understands very well, a number of factors influence how quickly the gender pay gap will decline. Obviously, there is so much research now on the value of a diverse workforce and how that improves profitability and competitiveness; we hope it will accelerate. In relation to ethnicity pay gap reporting, the noble Baroness will be aware that this gap is 2.3%, much smaller than the gender pay gap. We are working on promoting our guidance on how to address this through employer groups. In relation to disability reporting, following the successful court action we are reviewing our responses to the consultation.

Equality Act 2010 (Amendment) Regulations 2023

Debate between Baroness Thornton and Baroness Barran

Wednesday 13th December 2023 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

My Lords, this instrument was laid on 7 November 2023 and debated last Wednesday in the other place. Its purpose is to reproduce select interpretive effects of retained EU law in order to maintain equalities protections against discrimination. These protections are reproduced by making amendments to the Equality Act 2010. I thank the Joint Committee on Statutory Instruments for its consideration of and comments on the regulations.

It is important to make clear from the outset that the overwhelming majority of our equality law is contained in domestic legislation—the Equality Act 2010, approved and voted on by our own Parliament. The interpretive effects of retained EU law have a bearing on our equality framework in only a limited number of areas.

This instrument uses the powers of the Retained EU Law (Revocation and Reform) Act 2023 to ensure that necessary protections are put into our statutes. This will end the inherent uncertainty of relying on judicial interpretations of EU law and instead ensure that strong and clear equality law protections are set out in our domestic legislation. It applies across Great Britain.

The instrument safeguards and enshrines key rights and principles across a range of areas. First, it protects women’s rights: maintaining equal pay protections where employees’ terms and attributable to a single source, but not the same employer; protecting women from less favourable treatment at work because they are breastfeeding; protecting women from unfavourable treatment after they return from maternity leave, where that treatment is in connection with a pregnancy or a pregnancy-related illness occurring before their return; ensuring that women are protected against pregnancy and maternity discrimination, where they do not have a statutory right to maternity leave but have similar rights under alternative occupational schemes; and ensuring that women can continue to receive special treatment from their employer in relation to maternity—for example, ensuring that companies continue to offer enhanced maternity schemes.

I am sure that all of us in this place agree that women should not face discrimination for being pregnant or taking maternity leave. They should continue to receive equal pay for work of equal value and they should not receive less favourable treatment in the workplace because they are breastfeeding.

This instrument reproduces these principles in domestic law to ensure that women can continue to rely on these protections. It also maintains protections for disabled people in the workplace, so that they can participate in working life on an equal basis with other workers. It is of course important that disabled people have the same opportunities as everyone else to start, stay and succeed in work. This amendment will mean that disability protections continue to apply where someone’s impairment hinders their full and effective participation in working life on an equal basis with other workers.

Finally, the instrument maintains two protections that apply more broadly. The first maintains the status quo, whereby employers and their equivalent for other occupations may be acting unlawfully if they make a discriminatory public statement relating to their recruitment practices, including when there is not an active recruitment process under way. This ensures that groups that share certain protected characteristics are not unfairly deterred from applying for opportunities in an organisation.

The second maintains protections against indirect discrimination for those who may be caught up and disadvantaged by indirect discrimination against others, so that they are also protected where they suffer substantively the same disadvantage.

We intend that there will be no time gap and no break in protections between this law coming into effect and the removal of the special status and EU-derived features of retained EU law at the end of the year. By maintaining these important protections, we will ensure that our domestic equality framework has continuity. Importantly, these amendments do not add any regulatory burdens on business, as the legislation reproduces the status quo, meaning that the regulatory environment will not change.

I hope your Lordships will join me in supporting the draft regulations. I beg to move.

[Baroness Thornton (Lab)]

My Lords, those of us who participated in the REUL Bill debates were aware that the Government would need to safeguard important protections derived from EU case law and ensure they were retained—and do so by the end of this month. Indeed, I spoke during the passage of that legislation about my concerns for women and equalities legislation.

We do not regard the SI as controversial. Rather, the protections being restated today underline why this process is so important. People cannot lose rights that are being reasserted in these regulations. As the Minister said, they are massively important to women, protecting them through and after pregnancy, against pay inequality and from discrimination, and are crucial in providing people who have disabilities with protection against discrimination. Of course these vital protections need to be retained, and I agree with the Minister that it is also important that we give people certainty in law by restating these principles.

However, my questions are about the fact that we are getting round to restating these protections only a matter of weeks before they could have disappeared. That is a little concerning. So I ask the Minister about the Government’s wider approach to identifying which bits of important case law they wish to retain and then pass, through regulations, on to our statute book. It worries me that we are doing this a week or so before this law would fall. I just hope that nothing else will be lost in this process. Can the Minister tell us what measures the Government are taking to ensure that important decisions are taken about the interpretive effects of retained EU law? Do the Government have an equivalent to the dashboard—everybody will remember the dashboard that was mentioned during the passage of the REUL legislation—which was introduced to identify statutory instruments for European Union judgments that have an impact on domestic law? “How’s that going?” is, I suppose, what I want to say.

I am not going to go into detail about the regulations, because they are very straightforward and do exactly what we hoped they would do. It is therefore important to note that putting them on to the statute book and ensuring stability about this does not mean that the battle for equality is over. For example, the earnings gap between disabled and non-disabled people has increased. It is over half a century since the Equal Pay Act was passed in 1970, so I am sure the Minister will join me in agreeing that we still both have work to do in this area. This is providing us with the legislative infrastructure to do it, but we still have work to do.

T-levels

Debate between Baroness Thornton and Baroness Barran

Tuesday 25th July 2023 Lords Chamber

[Baroness Barran (Con)]

The noble Lord is absolutely right that we need a range of choices of placements, and that must include small and medium-sized enterprises. We launched recently an employer support fund, which will pay for legitimate costs employers incur in hosting placements. We believe that will be of particular value to small and medium-sized enterprises.

[Baroness Thornton (Lab)]

My Lords, I am slightly shocked that the Minister does not seem to be taking seriously the very serious criticisms included in the Ofsted report about T-levels—which, I have to say, my noble friend Lord Watson and other noble Lords predicted when the House discussed the establishment of T-levels. There is no satisfaction in being right, because this concerns the lives, futures and aspirations of a cohort of young people who have been badly served by T-levels, many of whom have dropped out. Has the department tracked these youngsters? What has happened to them, and have they been offered alternative options?

[Baroness Barran (Con)]

I will make a couple of points. I think the data that the noble Baroness and the noble Lord, Lord Addington, referred to on drop-outs refers to the T-level transition programme—we are doing a lot of work to strengthen and improve this, for the reasons both noble Lords referred to—rather than T-levels themselves. In the interests of fairness and accuracy, noble Lords have understandably reflected some of the areas for improvement highlighted by Ofsted, but I will quote the report:

“At their best, T levels provide an opportunity to combine high-quality study of theory with excellent development of practical skills”.

Schools: Admissions

Debate between Baroness Thornton and Baroness Barran

Monday 17th July 2023 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, it is estimated that 1.2 million school places are subject to religious selection. There is evidence of low numbers of pupils eligible for free school meals, which is a measure of deprivation, in English faith schools. Will the Minister share her reflections and concerns about the selection process that may have led to this and whether the Department for Education will take a deeper look at this?

[Baroness Barran (Con)]

I looked at those numbers just before this Question, because I anticipated that the noble Baroness might raise them. I am happy to pick this up with her afterwards, but the data that I looked at suggest very little difference in the profile of deprivation between faith and non-faith schools.

Schools: Curriculum Update

Debate between Baroness Thornton and Baroness Barran

Thursday 8th June 2023 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, everyone would agree on the need for a relevant curriculum, so the noble Lord, Lord Holmes, makes a very good point, particularly on building character and resilience. Can the Minister explain to the House how children’s resilience can be built when the Public Accounts Committee report published yesterday found that the attainment gap in respect of the most disadvantaged children has continued to grow? The Government appear to have no specified measurement for the success of the additional investment in the National Tutoring Programme.

[Baroness Barran (Con)]

This country is not unique in its disadvantaged children having suffered particularly during the pandemic. We have been very clear about our vision for the National Tutoring Programme, which is particularly relevant in giving disadvantaged children access to some of the privileges enjoyed by children from more socially advantaged homes. Tutoring on its own is not enough, which is why we have made a number of commitments including, at one end of the spectrum, putting senior mental health leads in our schools and, at the other, reinforcing our commitment to sport, music and other resilience-building activities in our schools.

Schools: Financial Literacy

Debate between Baroness Thornton and Baroness Barran

Thursday 20th April 2023 Lords Chamber

[Baroness Barran (Con)]

Certainly, the aspects of the curriculum that relate to how to operate safely online include fraud, which is a growing and terrible problem, as the noble Lord points out.

[Baroness Thornton (Lab)]

My Lords, the United Kingdom strategy for financial well-being sets a national goal to ensure that 2 million more children and young people across the UK receive meaningful financial education by 2030. I have not found any evidence yet that the Government have dropped this goal, although I have yet to find any evidence that the Government are on track to deliver it. But I would like the Minister to wonder how that goal can be achieved, given that research from the APPG on Financial Education for Young People suggests that two in five teachers are completely unaware of the legal requirement to teach financial education.

[Baroness Barran (Con)]

I understand the direction of the noble Baroness’s question. I would say that the data from the APPG report, which is extremely valuable, is none the less from a very small sample. It was from, I think, 401 teachers across the four nations. So, I think we have to be careful about extrapolating from that. The Money and Pension Service, which is responsible for delivering the additional 2 million children receiving good financial education has a wide range of programmes, including support for teacher training, communication and support for parents as well.

Higher Education (Freedom of Speech) Bill

Debate between Baroness Thornton and Baroness Barran

Report stage
Wednesday 7th December 2022 Lords Chamber

[Baroness Thornton (Lab)]

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 (Con)]

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 amended by paragraph 9 of the Schedule to the Bill. Section 75, as amended, will provide that the regulatory framework which the Office for Students is required to publish must in future include

“guidance for students’ unions to which sections A5 and A6 apply on their duties under those sections”.

This must include

“guidance for the purpose of helping to determine whether or not students’ unions are complying with their duties under sections A5 and A6”.

The guidance may in particular specify what the OfS considers that student unions need to do to comply with those duties under new Sections A5 and A6, and the factors which the OfS will take into account in determining whether a student union is complying with its duties. It is worth noting that Section 75 requires consultation on the regulatory framework before its publication, and it must therefore be laid before Parliament, giving proper transparency.

In the new regulatory regime that the Bill will establish, including under Section 75, it would be wrong for separate guidance to be published by the Secretary of State rather than the regulator—the OfS. It would also, in practical terms, be too tight a timescale to require publication within three months of Royal Assent. There will be a great deal of work to be done on implementation, including setting up a complaints scheme team, drafting the new complaint scheme rules, drafting guidance, consulting on the changes to the regulatory framework and making those regulations; as your Lordships know, that will take time.

I hope my explanation has satisfied the concerns of the noble Lord and that the House will agree that the Bill deals with these issues appropriately as it stands.

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[Baroness Barran (Con)]

My Lords, I will address this group of amendments relating to overseas funding and the application of the reporting requirements to the regulator. Amendment 26, tabled in the name of the noble Lord, Lord Collins of Highbury, seeks to ensure that it is the governing body of a constituent institution rather than their registered provider that must report information required under Clause 9 to the Office for Students. This is rather complex, in that the duty of the OfS in Clause 9 is to be exercised via the existing regulatory regime for registered higher education providers. The OfS already has the power to obtain information from providers.

New subsection (4), which is the subject of this amendment, refers to Section 8(1)(b) of the Higher Education and Research Act 2017. This requires that there is a condition of registration under which the governing body of a provider must supply the OfS with information for the purposes of the performance of the OfS’s functions as the OfS may require. This is achieved by registration condition F3, as described in the OfS’s regulatory framework, which applies to providers and not to constituent institutions.

The approach in proposed new Section 69D of the 2017 Act is that the OfS may require the governing body of a provider to supply information about relevant funding received by the provider or “a connected person”. A connected person is defined in subsection (6) as including

“a constituent institution of the provider”.

The noble Baroness, Lady Royall, asked for clarification and I hope that that is clear. If it is not now, it may appear clearer in Hansard.

[Baroness Thornton (Lab)]

I think what the Minister said was quite clear, but the concern is whether that is a satisfactory way to proceed for collegiate universities.

[Baroness Barran (Con)]

As I said, it builds on the existing approach to regulation of constituent colleges.

Amendments 27 and 28, also tabled by the noble Lord, Lord Collins of Highbury, seek to reduce the scope of Clause 9. Amendment 27 would allow the Office for Students to seek information only where the OfS considered that there were reasonable grounds to suspect a breach of the freedom of speech duties. Amendment 28 would remove overseas commercial partnerships from the definition of “relevant funding”, meaning they would not be within scope of the clause.

New Section 69D(1) 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 which the funding may pose to freedom of speech and academic freedom in the provision of higher education. The only way that the OfS can monitor the funding is if it has the necessary information. The power to require such information is linked to the registration condition that already exists under Section 8(1)(b) of the Higher Education and Research Act 2017; that is, condition F3 as described in the regulatory framework that I have already mentioned. Clause 9 is not about the speculative investigation of individual contractual arrangements; it is about routine monitoring of relevant information, at a sufficient level of detail, but no more than that, to allow the OfS to monitor the risk to freedom of speech.

As I said before, Amendment 27 would limit the power to require information from providers to where the OfS considered that there were reasonable grounds to suspect a breach of the freedom of speech duties. That test sets a very high bar which could arguably never be met. The OfS would not be in a position where it could suspect a breach because it would not have evidence to support that. However, at the same time, the amendment would mean that it would not be able to require information that may provide such evidence, so this would be circular, resulting in the inability of the OfS to obtain information on overseas funding. That in turn would mean that the OfS would not be able to carry out its duty to monitor the risk to freedom of speech that overseas funding may pose. This would mean that new Section 69A would be ineffective and would subvert the whole point of the overseas funding clause.

I should add that the effect of the drafting of this amendment would not be to prevent commercially sensitive information becoming subject to freedom of information requests through the regulator having requested it, which I understand the intention of the amendment to be, noting that the amendment does not refer to that and focuses simply on suspicion of breach. In any event, approved fee cap providers are themselves subject to freedom of information requests, so disclosure of information to the regulator would not result in new exposure to that legislation, and, of course, the OfS already holds sensitive information about providers as part of its overall regulatory role—for example, financial information—so this will not be new.

As for Amendment 28 and the removal of commercial partnerships from the scope of new Section 69A, the Government are of the view that the funding received from such partnerships could pose a risk to freedom of speech and academic freedom. Accordingly, if we do not include commercial partnerships in new Section 69A, we would be leaving a large gap.

The OfS will decide on the level of detail that it will need as regards the information that it will require from providers, liaising with the sector as need be in order to determine that. The OfS will of course consider how to handle any sensitive commercial information that it requires to be provided, but, as I have said, it already holds sensitive information, so this would not be new.

I note that the noble Lord references in his explanatory statement that the clause may force a violation of commercial contracts not governed by UK law. My understanding is that commercial contracts are likely to contain a standard clause dealing with disclosure to regulators, so disclosure under the Bill would be covered by that.

As for the particular situation of a university press, which my noble friend Lord Patten of Barnes referred to, such a body will be in scope only if it is legally part of the provider. In that case, it would not be an independent trading entity. If it chooses to have as its legal status to be a department of a provider, as I am aware is the case for Cambridge University Press and Oxford University Press, it inevitably brings itself within scope of regulation as a part of that provider. I would be more than happy to follow up with my noble friend if he would like to progress that conversation or requires any further clarification on that point.

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[Baroness Thornton (Lab)]

I am still not clear how the fishing expedition that the noble Lord, Lord Patten, mentioned would be avoided. That is the point here, is it not? There is a vulnerability and a risk. The Minister needs to explain that to the House—if not now, certainly before the next stage of the Bill—otherwise we will need to return to this. It is not at all clear to me how that risk is averted through the regulation that the Minister has explained.

[Baroness Barran (Con)]

Given the hour, I am more than happy to set that out in detail in a letter to the noble Baroness. I hope that will allow us to explain to the satisfaction of the House how this provision will operate and that the amendments—

[Baroness Barran (Con)]

I hear the noble Baroness’s request. I hope my letter will be able to reassure your Lordships that these amendments are not necessary.

[Baroness Thornton (Lab)]

My Lords, I think the Minister will understand that the House is still not satisfied that we are in a safe place with Clause 9. I hope we can achieve that before we get to the next stage of the Bill, but we may need to return to this at that stage. I beg leave to withdraw the amendment.

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[Baroness Thornton (Lab)]

Can the Minister say whether the chief executive or chair could refuse to allow the director for freedom of speech to appear in front of a Select Committee? Could they say, “Sorry, there is no requirement for them to do that and we are not going to let them”, even if that Select Committee has asked for them to do so?

[Baroness Barran (Con)]

I am afraid that I do not strictly know the answer to the noble Baroness’s question, but that would go absolutely against the spirit of the way in which our public bodies and arm’s-length bodies engage with our Select Committees. I cannot imagine that would be the case, but I will clarify for her whether it is even a possibility and write to her on that point.

[Baroness Barran (Con)]

The noble Lord makes several important points, the first being the quality of our universities and the pride that we all take in that—the Government echo the sentiments he expressed about their quality and the global esteem in which they are held. We take this appointment extremely seriously, hence the fact that we are following the public appointments process.

The role of the regulator is very sensitive, as the noble Lord understands extremely well, and that is absolutely why there is the level of transparency and accountability to Parliament that I just set out. We take this extremely seriously, for some of the reasons the noble Lord expressed. The only point I might disagree on is that the driving force behind the Bill was a concern about freedom of speech within our universities, rather than a particular political angle, but we can perhaps discuss that outside the Chamber.

Most recently, the chief executive of the OfS went before the Education Committee as a witness in relation to controversial research content and free speech. If the focus of the appearance were to be on free speech in the future, the director for freedom of speech and academic freedom may well of course be involved with that.

Given what I have said, I hope that your Lordships agree that there are sufficient safeguards in the Bill as drafted to deal with these important points of concern. I hope that the noble Baroness opposite will withdraw her amendment.

[Baroness Thornton (Lab)]

I thank the Minister for that extensive explanation. We are probably 50% happy and 50% still worried, and part of the reason for that is that time has passed in terms of the appointment and so on, and the concerns expressed by the noble Lord, Lord Wallace, about how this has been achieved and why people might be worried about what the director for free speech might get up to and how they would do their job. It must be in the Government’s interest not to allow those concerns and worries to exist. I will of course withdraw the amendment, but I put on the record, as we have, that this is not where we would want to end up: we want more confidence in the system, rather than less. I beg leave to withdraw the amendment.

Higher Education (Freedom of Speech) Bill

Debate between Baroness Thornton and Baroness Barran

Committee stage
Monday 14th November 2022 Lords Chamber

[Baroness Thornton (Lab)]

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.

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

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 ---

[Baroness Barran (Con)]

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 (Lab)]

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.