Higher Education (Freedom of Speech) Bill

Debate between Earl Howe and Lord Triesman

Consideration of Commons amendments
Tuesday 21st March 2023 Lords Chamber

[Earl Howe (Con)]

My Lords, I just say to the noble Baroness, Lady Fox, that strictly speaking there should not be any interventions at this stage of the Bill.

[Lord Triesman (Lab)]

Because we are not having that kind of iterative debate, I will refrain from making the point that I am not saying that I spoke only to academics who took the same view I might take. I am just saying that if you speak to academics, you will hear as many views as the number of academics you speak to; that is in the nature of the business.

I welcome the process we have gone through because it has alerted people to a very significant problem. A few days ago in your Lordships’ House, I heard somebody say that trigger warnings were now being attached to reading lists of some of the great classics from the English oeuvre. I was just about to embark on a re-reading of Northanger Abbey. If anybody has any advice for me about dangerous pages that I should avoid, I should be extremely grateful to hear it, because I would hate suddenly to find my entire spiritual underpinnings removed while reading Jane Austen.

This debate will leave a legacy. It will make everybody more attentive to the risks to free speech and academic freedom, and I am not at all sad that we have gone through the process if that is the outcome.

Higher Education (Freedom of Speech) Bill

Debate between Earl Howe and Lord Triesman

Committee stage
Wednesday 2nd November 2022 Grand Committee

[Earl Howe (Con)]

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 (Lab)]

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 (LD)]

They might find out in the newspapers.

Higher Education (Freedom of Speech) Bill

Debate between Earl Howe and Lord Triesman

Committee stage
Monday 31st October 2022 Grand Committee

[Earl Howe (Con)]

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 (Lab)]

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 (Con)]

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.

--- Later in debate ---

[Earl Howe (Con)]

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 (Lab)]

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 (Con)]

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 (Lab)]

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 (Con)]

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.