The Importance of the Relationship Between the United Kingdom and India
Lord Collins of Highbury Excerpts(3 years, 6 months ago)
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Lord Collins of Highbury (Lab)
My Lords, I start by thanking the Leader of the House and the Chief Whip for facilitating Lord Soley’s valedictory contribution this evening. He has made a remarkable contribution to Parliament over his 44 years here and his speech, though it may have been a little long, certainly did that justice.
I also thank the noble Baroness, Lady Verma. We have talked on many occasions about the importance of the UK-India relationship, particularly the business and economic aspects. She made an excellent introductory contribution to the debate. I also thank the noble Baroness, Lady Foster, and the noble Earl, Lord Minto, for their contributions. I think we will hear a lot from them in future. I particularly welcome that they have such a wide range of experience to contribute. I say to the noble Earl that I regularly shop in Paperchase, so I hope it is a continued success.
As we have heard, India is one of the world’s largest and fastest-growing economies, with deep historical and cultural links to the United Kingdom. The Government’s integrated review describes India as
“an international actor of growing importance”,
which perhaps undersells it a bit. Since the publication of that review, we have reached agreement with India on a joint framework for future relationships between the two countries. The 2030 Roadmap for India-UK Future Relations will, as it puts it,
“guide cooperation for the next ten years”
and cover “all aspects” of the relationship between the two countries. Importantly, it will be subject to an annual strategic review meeting to monitor its implementation and, if necessary, could be updated. I hope in his response the Minister will assure us that preparations for such reviews, together with their outcome, will be fully reported to Parliament.
As we have heard, the road map set out to cover the following five areas: connecting our countries and people, trade and prosperity, defence and security, climate, and health. On connecting our countries, the road map focused on education, research and innovation, capacity building, employment and culture, and we have heard from many noble Lords how important those areas are.
As the noble Baroness, Lady Verma, said in her introduction, the Indian diaspora community continues to make an enormous and important contribution to everyday life in the United Kingdom and is vital to building those links. So I ask the Minister: what cross-departmental effort will be made to reflect this contribution from the diaspora in future talks, particularly on the road map and a future trade agreement?
The noble Lord, Lord Hannay, referred to our soft power. The BBC World Service is an important element of that. In 2006, the BBC World Service bureau in India conducted a study to discover the impact of its services reporting across rural areas in India. It found that:
“In each town people said that the BBC can influence change. Expressing high regard for BBC Hindi programmes, they also praised BBC Hindi journalists’ ability to access and interview those in authority.”
I hope the Minister not only accepts how important that service is but understands that cuts will impair this positive impact on our relationships.
On trade, the road map commits the two countries to
“create shared prosperity and deliver leadership in global economic governance.”
As we heard from the noble Lord, Lord Hannay, the Government promised to deliver the completion of a trade agreement with India by Diwali 2022. Can the Minister tell the House if a future target date for completion of the Indian trade deal has been determined? I hear what the noble Lord, Lord Bilimoria, says; we certainly want the trade deal to be properly conducted, but it is necessary to make progress as quickly as possible.
It has been widely reported that the failure to deliver the trade agreement was the result of the Home Secretary’s claim that there is a particular problem with Indian visitors to the United Kingdom overstaying their visas. Does the Minister accept that such comments have a negative impact on our relationships? It is so important that we value people’s contributions, particularly those of people from India who visit here. We should certainly be extremely careful about that.
In future negotiations, as we have heard, it is vital that issues such as workers’ rights and environmental and climate standards be fully addressed. The Minister assured the House in discussions on strengthening the road map—whether on trade, investment, technological co-operation or improving lives and livelihoods in India and the United Kingdom—that the issue of lives and livelihoods is intrinsically tied to the whole concept of human rights. I hope in his response he can describe how this will be explicitly addressed in any formal agreement.
On defence and security, the road map emphasised the two countries’ shared interests, which will underpin co-operation in multilateral fora to
“build understanding among diverse partners on international security”.
As the noble Lord, Lord Swire, reminded us, India has ambitions to play a greater role at the United Nations, including on the Security Council, to which, as he also reminded us, it has been elected eight times. The Minister said earlier this week that he supports a new permanent seat for India, as well as others. Can he tell us what concrete steps the UK mission is taking to achieve this, particularly in collaboration with other permanent members of the Security Council?
On climate change, the road map says that the UK and India are committed to safeguarding the planet, building a more environmentally sustainable future and achieving the goals of the Paris Agreement. This includes mobilising investment and climate finance. Can the Minister indicate what role the Government envisage for BII—the former CDC—in this? How does this aspiration in the road map fit in with the BII’s five-year strategy?
On health, the road map describes the UK and India as global forces for good and says that they will use their
“combined research and innovation strength to address the biggest global health challenges, save lives and improve health and well-being”.
We have clear evidence of that with the Covid pandemic. However, as my noble friend Lord Browne and others said, India supplies 25% of medicines used by the NHS. The UK must acknowledge the importance of the Indian pharmaceutical industry to both the NHS and global health. Does the Minister therefore agree that we should seek to protect, not weaken, access to generic medicines from India within the FTA? What analysis has been done in the process of negotiating the FTA to assess the potential impact the agreement may have on the supply of medicines from India to the NHS? As noble Lords have said, India has often been called the “pharmacy of the developing world”, and its generics industry has played an essential role in the provision of generic medicines, particularly in the fight against HIV and AIDS. What analysis has been done in the process of negotiating the FTA to assess the potential impact that that agreement may have on global access to those generic medicines and, therefore, health outcomes?
In conclusion, the negotiating process for the UK-India free trade agreement has not included opportunities for either public or parliamentary scrutiny. I know that many have criticised this, and I hope the Minister can reassure us and tell us what the next steps in the negotiations process are and whether they will ensure civil society and parliamentary engagement, so that we can give feedback.
Democracy Denied (DPRRC Report)
Lord Collins of Highbury Excerpts(3 years, 6 months ago)
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Lord Collins of Highbury (Lab)
My Lords, this has been an excellent debate. I start by thanking the chairs of the committees, the noble Lords, Lord Blencathra and Lord Hodgson, for their excellent introductions. I also want to thank all members of the committees for their hard work in producing these reports. We have heard that both committees collaborated closely, producing parallel reports and holding joint evidence sessions.
Crucially, as we have heard this afternoon, the overwhelming message is that the abuse of delegated powers is, in effect, an abuse of Parliament and of democracy. Despite the response from the Government, these reports, as the noble Lord, Lord Blencathra, reminded us, will be a prompt to strengthen Parliament in the coming years.
It is worth repeating the words of the noble Lord, Lord Hodgson. This is not a debate about Lords versus Commons; it is a discussion about how we strengthen Parliament. I will not be tempted to comment on what we might be able to do in Opposition and then as a Government. The fact is that our democracy is a parliamentary democracy, and it is how we strengthen Parliament that is now most important.
The conclusions of the DPRRC report are that it is now a matter of urgency that Parliament should take stock and consider how the balance of power can be reset. As it says, far too often primary legislation is being stripped out by skeleton provisions and, with the inappropriate use of wide delegated powers, it is increasingly difficult for Parliament to understand what legislation will mean in practice and challenge its potential consequences. We have heard numerous examples from across the House of such legislation being put before us, including Bills that are currently before the House.
Importantly, the committee’s report refutes the argument that parliamentary legislative procedures cannot respond swiftly to address urgent, unforeseen situations. As part of my responsibilities as shadow FCDO spokesperson, I have been involved in work on the war in Ukraine. We worked with the Government to ensure a speedy response to a very difficult situation. It did not avoid parliamentary scrutiny, but meant working collaboratively to address the urgent issues. Of course, both Brexit and the pandemic are other good examples of that.
The committee’s analysis of the historical account of delegated legislation shows there have been times when the Government of the day have been impatient of parliamentary legislative constraints. However, as the noble Lord, Lord Norton, says, Parliament rightly demands patience in fulfilling its most important role: making our laws—and making them good laws.
One of the things that I have done is work with the noble Lord, Lord True. We have had debates on Bills before this House in which we have pointed out that clauses had unforeseen consequences. To be fair to the noble Lord, Lord True, he has supported the Opposition in taking clauses out of Bills where that has happened, and I thank him for that. It is important that, in this debate, when we are critical of our procedures and of some of the things that the Executive do, we stress the importance of the work of this House and how well we do it. I do not accept that we do not force the Government to change—because we do. More often than not, 90% of the changes that we make are not via votes and defeating the Government; they are by winning the argument and making the case, which sadly does not happen too much down the other end. But we do it here, and that is really important.
The recommendation in the SLSC report that Parliament and the procedure committee should follow a special procedure for skeleton Bills with substantial delegated powers was rejected in the Government’s response. They argue that Parliament is able to consider each Bill on its own merits, and agree or disagree to delegating powers. In reality, of course, the ability to do this limited. As the DPRRC noted:
“The limits on Parliament’s ability to intervene in delegated legislation places an even greater significance on ensuring the appropriateness of the delegation in the first place.”
The tax credits situation is a really good example of that. It is also a good example of where we did not use our powers to push down something; we used them in an innovative way to say to the other place that it should think again. The problem that the Government of the day had in that situation was that they were not confident that they would have a majority in the elected House. Our role was not to abrogate the responsibilities of the democratic House; it was to say to the democratic House, “Here you are; think again”. That House was prepared to think again and changed its mind. That is the important thing in this debate.
The Opposition supports these committees’ recommendations. Substantive components of policy should be decided and presented via provisions on the face of a Bill, not devised and introduced by secondary legislation after a Bill becomes an Act. We have had many examples of that recently. I hope that the Minister could, at the very least, consider consulting on the merits of creating a new procedure for skeleton Bills. I hope that there will not be a closed-door situation here. The Government’s response to date on the recommendation that there should be fewer cases of poor practice and the improper use of secondary legislation and guidance is not convincing. Departments need to improve their efforts to ensure that a clear and appropriate distinction between legislation and guidance is maintained. The pandemic highlighted the inadequacies of this process.
The SLSC was not convinced by the answers it received in evidence about why sunset clause provisions are not used more often as a matter of good practice. I have moved amendments myself in recent times on why a sunset clause would be appropriate. The Government could now, of course, also consider a greater use of various forms of sunset clauses, such as a sunset and renewal clause.
In the Government’s report The Benefits of Brexit: How the UK is Taking Advantage of Leaving the EU, the Government said that they would
“provide guidance to departments on the use of sunset clauses in regulations and Legislative Reform Orders, including when they should be used”.
I would welcome the Minister sharing this guidance with the House, so that it could be formally reviewed. I realise that it may already be available, so I would welcome the Minister writing to me about it, particularly on the circumstances in which the Government consider sunset clauses should be used.
I am running out of time. I wanted to address a number of issues, particularly with regard to Henry VIII powers. Perhaps the Minister could tell us what progress has been made towards the DPRRC contributing to the Office of the Parliamentary Counsel delegated powers training sessions. As noble Lords said, this is a debate where we do not have to wait for legislative change. There is policy and practice that we can influence, which is why it is so important that these committee reports are reviewed properly on a regular basis.
My noble friend Lady Armstrong mentioned the importance of civil society. In fact, a lot of our work in reviewing legislation involves engagement with civil society and how we hear other voices. Here I take the opportunity to congratulate my noble friend Lord Prentis on his excellent maiden speech. That speech highlighted that our work is not limited to listening to ourselves; it is about how we reach out to communities, and support and confidence in our democracy is about how we engage with our communities. One of the things I have heard is about how we take back control. Certainly, taking back control is about how we empower our communities; how do we ensure that power is devolved to our communities and our towns and cities?
I conclude by saying that I have read the Hansard Society’s initial recommendations, which are due to be published, and I certainly think, like my noble friend Lord Hendy, that a new concordat between Parliament and government that sets out principles of legislative delegation would be a really good starting point. I hope the Minister can support the principle of that being adopted.
Cabinet Manual: Revision (Constitution Committee Report)
Lord Collins of Highbury Excerpts(3 years, 7 months ago)
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Lord Collins of Highbury (Lab)
My Lords, I too thank the committee for what I was going to call its timely report, but of course it has been published for some time now. I am extremely grateful to my noble friend Lady Drake for her excellent introduction to what is a relatively short and concise report. Its recommendations are pretty concise too. The fundamental question to which I hope the Minister will be able to reply is the one on timetable and consultation; he has already conceded that there will be a revision.
As the noble Lord, Lord O’Donnell, correctly said, one of the problems is this “from time to time revision”. But we now have the relevant technology, and in the previous debate we talked about how technology can be used for efficient government. One way to do that, as it is a manual and not a code, would be to revise it on a weekly basis, which could be done. There is no need for a delay, especially as it does not need the sort of approval that a code might need.
As the noble Lord, Lord Hennessy, said, the manual is a survey map of existing codes and laws. I too welcome back the noble Lord; I am pleased to see him here. One of his excellent skills was being able to sit down with me and make sure I gave him all the secret information I could from my conversations in the party and within politics; he is very good at that.
We have talked about the connections of codes, the Nolan principles and why they were developed, and where boundaries are drawn. I was struck by the reference made by the noble Lord, Lord Hennessy, to “good chaps” government. As a historian, where do you learn most about what happened? I do not think you learn from codes, laws and manuals. As the noble Lord knows, we learn the most from the published diaries of politicians. I have mentioned on previous occasions that I am currently ploughing my way through three volumes of Chips Channon’s diaries. If anyone wants to know about hypocrisy in Parliament and among politicians, they should certainly read that. Having failed to do so on previous occasions, I pay tribute to Simon Heffer, who has done an amazing job of editing those diaries, making sure that for all the nasty references there are good footnotes. One amazing thing is that I have been able to speak to many noble Lords in this House about what was said about their families.
It comes back to the fact that our system of government has become far more transparent, and the transparency that we now have places a bigger obligation on us to abide by codes of practice. In the past, the things that Chips Channon talked about would never have been published, especially as most of the media that people read at that time was controlled by six of the politicians who were in this House. It is an amazing thing that we now have to face up to; that transparency places an obligation on us all.
I like the idea the noble Lord, Lord Hennessy, had for an oath. We would expect every Prime Minister to abide by certain standards—it is a given—especially the Nolan principles. An oath places greater transparency on the person; the public would know that certain behaviour is not acceptable and that that person is breaking it. One of the issues of a written manual is the point that the noble Lord, Lord O’Donnell, mentioned: when does a precedent become a convention? That is a difficult one. I was listening to a Radio 4 programme “Archive on 4” about when an original phrase becomes a cliché. The issue is when it is repeated, and that is what we have to expect. Some of the best speeches are now clichés if they are repeated often enough.
The noble Lord, Lord Wallace, talked about stable government and coalitions. In Chips Channon’s diaries you learn a lot about the coalitions in our political process, which are not coalitions formed from different parties. The biggest coalitions we have in our political system are political parties themselves—which is why we have many of the problems. One of the tensions in our parliamentary democracy—I suppose I am entitled to say this—is that the political parties have to learn the lesson about the temptation to engage with their party memberships on how they elect their leaders. It imposes all kinds of problems on our parliamentary democracy in terms of collective responsibility. I said in an earlier debate that I was old-fashioned new Labour. Some things we have to learn from. I do not suppose that the Conservative Party will be too tempted to turn to its party membership again to elect a Prime Minister. Of course, that is what we are doing when we elect leaders of our political parties.
To return to the point made by the noble Lord, Lord Wallace, on coalitions, one of the problems with coalitions is that with a single-party coalition at least we know who takes responsibility when things go wrong but with multi-party coalitions parties never want to take responsibility when things go wrong. I certainly found that with the Liberal Democrats, but I am sure the Minister will remind us of that.
Lord Collins of Highbury (Lab)
In conclusion, this is a good, straightforward report, which requires a straightforward response. One thing about the standards of Prime Ministers is the question of the independent ethics adviser, which I know the Minister has responded to. In a previous debate, we had a long debate with his ministerial colleague, the noble Baroness, Lady Neville-Rolfe, about the problems of recruitment in the public sector. This is certainly one post which seems to have a big problem with recruitment. Why has it taken so long? It is a very important part of the range of codes and responsibilities. Issues are now not being addressed by an ethics adviser—who should have been appointed—but we are getting to the stage of employing casual labour, as it were, to do the job. If there is a specific complaint, they bring in someone to deal with it. Surely that cannot be right. We need somebody who can be properly held accountable. I hope that the Minister will respond not only on the timetable on the Cabinet Manual but on the timetable for appointing an ethics adviser to the Prime Minister. We have waited too long for that.
Parliamentary Works Sponsor Body (Abolition) Regulations 2022
Lord Collins of Highbury Excerpts(3 years, 7 months ago)
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Lord Collins of Highbury (Lab)
I agree with all the comments so far, but I repeat the words of my noble friend Lady Smith when we debated the report the SI has come out of, to end the previous structure. She emphasised that this
“is not our building. It belongs to the nation as the home of Parliament, and we have a responsibility as custodians of this building for future generations.”—[Official Report, 13/7/22; col. 1542.]
It is not about what we want but about protecting something that has been the symbol of democracy for hundreds of years. That is my starting point.
Whenever I hear the phrase “we want to avoid political interference”, I know that it will lead to political interference, as opposed to what this project needs more than anything: political buy-in. How do we ensure that when decisions are made, those with the responsibility for funding will support it? There is no point having grand plans if, at the end of it, people say that it is not affordable. We must have political buy-in—
Lord Forsyth of Drumlean (Con)
The noble Lord said that it is not our building. Who, then, is the client? Who is responsible for deciding what happens if it is not the Members of this House and the other place? Who is the client?
Lord Collins of Highbury (Lab)
We clearly are. I am not saying that we are not. I was hoping to make the case that our responsibility is not limited simply to what we want for now. Our responsibility is to look to future generations as custodians of this place and not simply managers. Even more importantly, we talk about accountability, but I want to keep using the words “political buy-in”, because at every stage of this project we have to ensure that there is consensus and political buy-in. When we start making party-political points, we will fail.
When the noble Baroness, Lady Doocey, was Chair of the Finance Committee and I was a member of it, we had regular discussions about this. There is perhaps a wider assumption in the world outside that this building needs restoration and that we are planning a restoration programme, but this building is like the Forth Road Bridge: we have not stopped restoring it. We have spent hundreds of millions of pounds a year to restore the fabric of this building. The problem, as we all know, is that when this building was built by the Victorians it was full of shortcuts and making do. Since then, we too have been making shortcuts and making do, which has added to the problem. A lot of the difficulties we face are from periods when we have made this innovation here and developed something else there. The mechanical and engineering problems we face downstairs did not start with the Victorians; they have been going on since the place was built. How do we address that?
I agree that we can all be frustrated by decisions being made without proper consultation. When I was on the Finance Committee, what I found most frustrating was trying to pin down the people making the decisions and make them responsible for those decisions. We do not make them accountable by taking responsibility away from them; we have to do the opposite. Making them responsible and accountable means that we, as the custodians, should set clear objectives and policies, so that when they are managing the programme, we can ask whether they have met those objectives and whether they have been successful. Those objectives may be cost objectives or other objectives.
The Clerk of the Parliaments has heard me say many times that I want to ensure that he can measure his activity against the clear policies we set. The arguments against decanting are about the big costs and that, in decanting, we are being too extravagant. Actually, one can make the case that decanting could save money. The QEII Centre was built some time ago and its own mechanics and electrics are in desperate need of renewal. That has been postponed, because we may move in and help it to do the work, so the process that we immediately think could cost a lot of money could save the public and the taxpayer a substantial amount of money. The issue is how we define those objectives and look at what we are doing as a whole.
One other thing that the noble Lord, Lord Forsyth, said was absolutely right. When we look at R&R, we must integrate properly what we are doing now in restoring this building. When I was on the Finance Committee, I thought, “Do we delay that to fit it in with R&R? Do we move forward on it? Is it taken into account in R&R?” All these issues have not been properly addressed.
We all have a responsibility—in particular, for the new governance structure, which I support. I should declare an interest, because I am going to be a member of the programme board; hopefully, I will be able to keep expressing the opinions I am expressing today. I will not be saying, “Tell me to make this decision”. I will be saying, “I want you to make the decision, but based on the clear policy objectives set by both the programme board and the two commissions”. That is what I hope to see but I am not fixed, by the way. If someone can persuade me that not decanting fully could work, I will go with it, but I like the idea that setting clear objectives, budgeting properly for them and having proper buy-in is a better way of doing this.
I support the regulations. We have made the decision anyway; we have already had a debate. I think that we will make this project more transparent with more accountability. I support that.
Lord True (Con)
My Lords, I am grateful to all those who have spoken in this debate. I must say, as a fairly recent tenant of the office of Leader of the House of Lords—it is a tenancy—I am finding it interesting trying to find out why and where things happen. Having experienced the horror of a powerful earthquake, as I have in my life, I sometimes feel like the little boy trying to find the butterfly that flapped its wings to cause all these things to happen in the first place.
However, we are where we are. As all those who have spoken in the debate have said, this is an extraordinarily important building. It is a palace of the people. As Leader of your Lordships’ House, I submit that its most fundamental importance is that it provides a place, and should provide an environment, in which Members of Parliament can carry out their fundamental democratic duties to hold Governments to account, consider legislation and discuss both between themselves and across the two Houses how things should be accomplished in the best place and in the best way. However we take this project forward—having listened to this debate, I know that an enormous amount of expertise and thought has been and will be given to this, and I pay tribute to the members of the sponsor body—we must never forget that this is a House of Parliament, and one that cannot simply say, “We can send these people away”.
I note what was said by the noble Lord, Lord Best, whose work on this and contribution to our House have been outstanding. We cannot avoid interference in a House of Parliament, as it was put by parliamentarians. That is why we are here: to make judgments and choose priorities. It may well be true that talk of a decant—the noble Lord was right in what he said on this—did cause some people to be troubled by what was proposed. But I assure your Lordships that the commissions have asked for a wider range of options to decant as we go forward, with Members and staff from areas of the building affected by the works being considered. The House will have future opportunities to take decisions, and it will be informed by full analysis and wide consultation and engagement. As someone said—perhaps it was my noble friend Lord Forsyth—it is important that Members feel engaged and informed as we go forward. The word “transparency” was also used by the noble Baroness, Lady Doocey.
Higher Education (Freedom of Speech) Bill
Lord Collins of Highbury ExcerptsWednesday 7th December 2022
(3 years, 7 months ago)
Lords ChamberRead Full debate Higher Education (Freedom of Speech) Act 2023 View all Higher Education (Freedom of Speech) Act 2023 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 30-R-I Marshalled list for Report - (5 Dec 2022)
Baroness Garden of Frognal (LD)
My Lords, from these Benches we very much welcome the government amendments in this group. We consider that “opinions” is a much safer term than “beliefs or views”. We also welcome Amendment 7, which aligns freedom of speech more closely to other conventions. I am afraid that I do not have the legal knowledge to discuss the views of the noble Lord, Lord Moylan, on whether paragraph 2 should be there.
However, we support the other amendments in the names of the noble Lord, Lord Collins, and the noble and learned Lord, Lord Hope. We are also very pleased that the Minister has signed Amendment 6, which should help to protect freedom of speech and well-being on our campuses. We realise it is unlikely that the other amendments in this group will go any further; meanwhile, we thank the Ministers very much for listening.
Lord Collins of Highbury (Lab)
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.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
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.
Lord Collins of Highbury (Lab)
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 (Con)
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.
“(10A) In order to achieve the objective in subsection (2), the governing body of a registered higher education provider must secure that the provider does not enter into a non-disclosure agreement with a person referred to in that subsection in relation to a relevant complaint made to the provider by the person (and if such a non-disclosure agreement is entered into it is void).(10B) In subsection (10A)—“non-disclosure agreement” means an agreement which purports to any extent to preclude the person from—(a) publishing information about the relevant complaint, or(b) disclosing information about the relevant complaint to any one or more other persons;“relevant complaint” means a complaint relating to misconduct or alleged misconduct by any person;“misconduct” means—(a) sexual abuse, sexual harassment or sexual misconduct, and(b) bullying or harassment not falling within paragraph (a).”Member’s explanatory statement
This requires the governing body of a registered higher education provider to secure that the provider does not enter into certain non-disclosure agreements (and as a result of new section A4 of the Higher Education and Research Act 2017 inserted by section 2 of the Bill this will also apply to the governing body of constituent institutions).
Lord Collins of Highbury (Lab)
My Lords, I have a confession to make: when I spoke at Second Reading, I expressed the opinion that this Bill was not necessary. However, during the process of Committee and the dialogue and discussions that I have had with many noble Lords—by the way, I have no interest as a university leader to declare—I was persuaded that there is an issue to address.
My experience as a trade union official over many years is that, when you want to change behaviour and culture, you do not do it through the courts. You do it through the very mechanism that the Bill proposes: improved and strengthened regulation, and a strengthened code of practice. That is what the Bill attempts to do and I have been convinced that it is necessary from hearing the arguments and all the cases and evidence given. This is not a binary choice: I now accept that the Bill is necessary. However, in my opinion, keeping Clause 4 would undermine the very thing the Bill is seeking to achieve. If you support the Bill, get rid of Clause 4, because it would undermine the very thing we are seeking.
Our approach, throughout Committee and Report, has been not to make this a partisan or party-political issue. We have heard the debate and listened, and I have accepted the need for the Bill. That is why I signed the amendment of the noble Lord, Lord Willetts. I expect and hope to divide the House, because this clause needs to go.
Earl Howe (Con)
My Lords, I begin by expressing my thanks to noble and noble and learned Lords from all Benches of the House for their thoughtful and helpful contributions to this debate, all of which I listened to with great attention. I think it would be helpful to the House if I begin my response by considering the tort in the round, before turning to the amendments tabled to this clause, bearing in mind the nature of the debate in Grand Committee and the subsequent, helpful discussions that my noble friend Lady Barran and I had with a number of noble and noble and learned Lords outside the Chamber.
The tort has undoubtedly been one of the most controversial measures in the Bill. A number of noble Lords have spoken today to express their opposition to its inclusion in the Bill. However, other noble Lords strongly support the inclusion of the clause. My noble friends Lord Moylan, Lord Frost, Lord Strathcarron, Lord Jackson of Peterborough and Lord Farmer, and the noble Lord, Lord Moore of Etchingham, have written to me setting out compelling arguments for retaining the tort, some of which we have heard today. Many of the arguments have been echoed by the Free Speech Union in a letter to the Secretary of State for Education signed by 49 leading academics, among them, incidentally, Professor Kathleen Stock. Perhaps I might say in that context that I reject the view expressed by my noble friend Lord Moylan that the government amendments, to which I spoke earlier, somehow water down or weaken the tort provision. They address the concerns expressed about the perceived risk of the OfS’s role as a regulator being undermined and of unmeritorious claims burdening universities with unnecessary costs. I am sorry that no noble Lord acknowledged that the government amendments would deal with those perceived risks, in my view, pretty comprehensively.
We are dealing here with a mixture of arguments. Part of the argument advanced for removing the tort is that it is unnecessary and that there are somehow other measures available to achieve the same thing. I think the best place for me to start would be to address that issue. The noble and learned Lord, Lord Hope of Craighead, suggested in Grand Committee that there would be a common-law tort available, even if the statutory tort was not in the Bill, and that view has been supported by other noble Lords. The Government have looked carefully at that proposition, but we are not convinced that that position is sufficiently legally certain, and for that reason it is not something on which we would wish to rely. I believe that opinion is divided even among noble and learned Lords on the issue.
The purpose of including the tort in the Bill at introduction was to make it 100% clear that a tort will be available, rather than leaving it to the courts to infer whether or not Parliament intended there to be a tort, which in certain cases, they may do. To leave the situation uncertain when we have the opportunity to be absolutely clear would be remiss of us.
The noble Lord, Lord Grabiner, made the point that the tort is not necessary because judicial review is available, whether of a decision by the higher education provider or a decision under the complaints scheme of the Office for Students or the Office of the Independent Adjudicator for Higher Education. However, judicial review is not available against decisions of a student union, and damages are generally not awarded in judicial review claims. I am afraid I do not accept his argument that damages would never be quantifiable in such cases. Of course, let us bear in mind—
Lord Collins of Highbury (Lab)
My Lords, my noble friend Lord Sikka knows the Labour Front Bench’s position on his amendment, because I wrote to him about it. He knows that we are very sympathetic to the issues and, like the noble Lord, Lord Wallace, believe that they need to be addressed. Certainly, over the years, all Governments have been focused on sufficient funding of research, through different mechanisms, such as the Medical Research Council and the Economic and Social Research Council—all these bodies through which we have attempted to ensure that research is open and transparent.
One of the problems that my noble friend is seeking to address is the sort of research when somebody decides to ask a question, hoping they know what the answer will be, and those tend to be funders, whether from business or industry. They are seeking a particular outcome and, if they invest in that research and the outcome is not the one they want, of course they will not publish. The noble Baroness, Lady Fox, focused on charities. I keep harping on about my own experience in the trade union movement, but I must admit that we certainly funded research in the hope that it would support our case for greater workers’ rights and higher pay. It did not always come out the way we wanted and we were sometimes not particularly keen to publish it. We did not prevent the academic from expressing the view and certainly did not stop them from publishing it themselves, but we were not necessarily going to promote it.
The Bill is about freedom of speech—we have had a long debate about it. When it comes to academic freedom and research, there are much more complex questions that should not really be dealt with in the Bill. I am fully sympathetic to some of the arguments that my noble friend Lord Sikka made, but this is not the right Bill, and certainly these amendments are not the right ones.
Earl Howe (Con)
My Lords, Amendment 23 tabled by the noble Lord, Lord Sikka, seeks to ensure that the provision of grant funding for research does not interfere with the academic’s freedom to edit and publish their research. The only exceptions would be if there was a confidentiality agreement between those giving and receiving the grant made in advance or if a court finds that full publication would threaten national security, public safety or health.
The noble Lord is of course right to be concerned about the provision of grant funding for academic research and, as he acknowledged, we discussed this issue in Grand Committee, although perhaps not conclusively. The approach in the Bill is to place duties on registered higher education providers, their constituent colleges and student unions. I have to say that it goes too far to place duties on others, such as those who give grant funding, and I am also not at all comfortable with the idea of interfering in the private contractual arrangements between parties, which would be the effect of this amendment.
If an academic wishes to seek grant funding, it is for them to agree with the other party what contractual arrangements should apply. That is in fact reflected in proposed new subsection (3)(b) of the noble Lord’s amendment and reflects the Haldane principle: that decisions on individual research proposals are best taken by researchers themselves through peer review—a principle enshrined in the Higher Education and Research Act 2017.
However, in my view it would go too far to require legal proceedings to determine whether full publication of research would threaten national security, public safety or health. First, those are extremely limited reasons, which I appreciate is the noble Lord’s aim, but there may well be other legitimate reasons why the grantor would not want full publication. Secondly, this would potentially open the door to costly and time-consuming litigation. I fear that this may have a chilling effect on grant funding if it deters grantors, which is obviously not desirable; it may also affect the academic, as a potential party to the litigation, who is likely not to have the means to fund their part in it. It does not seem to me that the involvement of the courts in such a matter is appropriate.
Noble Lords have suggested that there is a lacuna as regards transparency in the domestic funding of higher education. I hope that I can allay that concern very simply. The Higher Education Statistics Agency collects data about research grants and contracts, which is publicly available. The OfS collects data that it needs to support its functions, including ensuring that providers are financially sustainable, and publishes this through annual reporting.
Given those points, I hope that noble Lords will agree that this amendment is not necessary.
Higher Education (Freedom of Speech) Bill
Lord Collins of Highbury ExcerptsWednesday 2nd November 2022
(3 years, 8 months ago)
Grand CommitteeRead Full debate Higher Education (Freedom of Speech) Act 2023 View all Higher Education (Freedom of Speech) Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 30-II Second marshalled list for Grand Committee - (31 Oct 2022)
Lord Collins of Highbury (Lab)
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 (Con)
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 Willetts (Con)
My Lords, I will briefly make three comments on this debate; I realise that I will not occupy the same moral high ground as most of the participants in the debate so far.
The reality is often that co-funding, with public money and private money, is going into research projects which are believed to be of value for the British economy. I will give your Lordships a simple example. You may find that some public funding is going into a wind tunnel and some Rolls-Royce money is going into it so that it can research the functioning of a jet engine and improve Rolls-Royce’s capacity to be a market leader in jet engines. A lot of that goes on. Indeed, in a different part of the woods, we are told that more of that should go on and that we should be thinking more fully about how we use publicly funded research to promote business investment. There are lots of reasons for being wary but those type of relationships exist, and if anything, are being encouraged, and would not be possible under the provisions here. That is my first point.
Secondly, the American pressure on us with regard to the research we conduct and then publish, is because by and large they think we are very naive about what they call dual-use research of concern. They think that we publish lots of stuff which is the equivalent of publishing nuclear physics in the early 1930s. There is a lot of pressure from them for us to publish less, and they think we are naive about some of the possible implications of the research. If we are to have research partnerships with these international partners, if anything, the pressures are the opposite of the ones we have been hearing this afternoon.
My third point is really a question for the Minister. This is an issue which raises another angle where there is concern about this legislation. It is marvellous to have a Minister from the Department for Education as well as a Minister from the Cabinet Office. Several provisions of the Bill relate to the activities of BEIS and our research effort. The research activities of universities are not part of the DfE, and it would be good to be reassured that, on many provisions of this legislation which affect research capacity, we will have the voice of the business department, which is the ultimate responsible body, and that there has been suitable liaison across departments so that implications for research and innovation are properly considered as part of our deliberations.
Baroness Smith of Newnham (LD)
I think I have said everything that needed to be said from these Benches.
Lord Collins of Highbury (Lab)
I was tempted to declare my own interest as an assistant general secretary of a trade union that used to commission research. Once I knew the question and its answer, I would commission the research. There is that political side; social science is often involved in that sort of thing.
This has been a worthwhile debate. I am pretty certain that this Bill, or even this debate, is not the right place for these amendments.
The noble Lord, Lord Willetts, raised some fundamental points. One of my responsibilities is as the shadow FCDO Minister. In global research, how research—particularly medical research—can be innovative, and who controls and pays for it, is an interesting question. I certainly do not relate that to academic freedom; that is a different, commercial issue.
The noble Lord, Lord Stevens, made the excellent point that, if you are going to do research in a particular medical area, you are not going to be bound by employing someone who has no interest in pursuing that line of inquiry. For me, whenever these sorts of questions come up, the interesting thing about the sort of research done by my noble friend Lord Sikka is that the key is always transparency. Whenever a piece of research is published, I want to know who has funded it. I want to know who is ultimately responsible. To me, that is absolutely the key to this issue.
I was going to ask the Minister about impact; the noble Lord, Lord Moylan, raised this. Students Organising for Sustainability asked whether these duties would present a conflict between some universities’ health departments—at Imperial, for example—that have funding conditional on not recommending big tobacco in their careers service? That relates to advisers and freedom of speech. It would be interesting to hear the Minister’s view on that in relation to the debate on these amendments.
I have promoted debates in the Chamber on the broader issue of commercial research, particularly about who at the end of the day owns and controls the—I have a mental block.
Lord Collins of Highbury (Lab)
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 (Con)
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.
Earl Howe (Con)
I would hope that a rugby club would not be responsible for inviting somebody to talk about gender politics.
Lord Collins of Highbury (Lab)
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 (Con)
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
Lord Collins of Highbury ExcerptsMonday 31st October 2022
(3 years, 8 months ago)
Grand CommitteeRead Full debate Higher Education (Freedom of Speech) Act 2023 View all Higher Education (Freedom of Speech) Act 2023 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 30-II Second marshalled list for Grand Committee - (31 Oct 2022)
Baroness Smith of Newnham (LD)
My Lords, I wish to speak briefly in my own right, as opposed to speaking for my noble friend Lord Wallace, apart from one point about Amendment 1. The point of adding “within the law” is to fit with new Section A3, but that would be subsumed by the amendments in the name of the noble and learned Lord, Lord Hope of Craighead. The idea of defining freedom of speech is highly desirable, and that amendment appears to do the job.
I have some difficulties with Amendment 28, and it would be interesting to understand what the movers of that amendment mean in proposed new subsection (2). The relationships between this legislation and the Equality Act, and this legislation and other pieces of existing legislation, need to be thought about. I have some concerns about what the ramifications of proposed new subsection (2) would be.
Lord Collins of Highbury (Lab)
My Lords, this has been a fascinating debate, and one we could continue for some time, because it is about trying to reach a consensus about concepts—I have my name down to Amendments 3, 11 and 30—but it is also about how we talk about free speech in universities and about academic freedom. There has been confusion in the debate about those two things. One of my amendments tries to say that we should not forget academic freedom and how important it is to university life, and asks about the constraints on it, which are not necessarily all the things that we have been talking about. In my experience, academic freedom can be constrained by economic factors and income streams that universities might have. Research can be restrained for those sorts of reasons, and academics who followed a particular route of research have been constrained by those other pressures.
The noble Lord, Lord Mann, is absolutely right. He and I have shared the same experience: political views can be unpopular, and some of the demonstrations that we have faced have been quite violent. The noble Lord, Lord Alton, has sadly left the Room, but we had a debate on Friday on his genocide Bill, as well as a debate on Thursday about Ugandan Asians. I remember standing up and defending the need to protect Ugandan Asians and facing a quite violent reaction from people. It was not limited to the streets; it was in other institutions, even in my own trade union and my own party.
As a lifelong trade unionist—I am not making a Second Reading speech, but talking specifically about my amendments—I have long experience of how politicians want laws to change culture, which is impossible. The most successful progress in industrial relations has been made not by legislation but by consensus, agreement and discussion.
Earl Howe (Con)
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 (Lab)
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 (Con)
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.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Baroness, Lady Smith, very briefly, and to speak to Amendment 24 in the name of the noble Lord, Lord Wallace, to which, as the noble Baroness noted, I attached my name. I guess this comes from personal experience, because as leader of the Green Party I only once had security guards shadowing my every move. That was at the 2015 general election on a visit to Exeter University. Our very new, very young Young Greens were suddenly told that they had to arrange security and had to find the money to do so. I think the reason may have had something more to do with the fact that, the previous week, Nigel Farage had visited the university under the same circumstances and the university felt that it had to apply the same rules to both. That is how the situation arose, but I am none the less acutely aware that that was a considerable impediment.
If the cost of security is laid on student bodies particularly, that may stop an event going forward. However, I admit some sympathy also with the earlier intervention in this group asking whether this is really the sort of level of detail the House of Lords should be debating, which goes back to the whole question about the Bill.
Lord Collins of Highbury (Lab)
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 (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.
CHOGM, G7 and NATO Summits
Lord Collins of Highbury Excerpts(4 years ago)
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Lord Bilimoria (CB)
I did not miss them; I heard the noble Lord, Lord Newby.
Higher Education (Freedom of Speech) Bill
Lord Collins of Highbury ExcerptsTuesday 28th June 2022
(4 years, 1 month ago)
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Lord Collins of Highbury (Lab)
My Lords, I was not going to declare an interest until I heard the contribution from the noble Lord, Lord Cormack, which reminded me that I too had been a visiting parliamentary fellow at St Anthony’s, which I enjoyed very much. I was a joint fellow with a Conservative Peer and we planned a schedule of lectures with competing arguments, so I understand the value of challenging thought and ideas—it is absolutely what makes for progress.
As we heard in the excellent introductory speech from the noble Lord, Lord Wallace, the Bill has had a fragmented and bumpy ride through Parliament. Not many Bills would be introduced in May 2021, and complete their Committee stage in September of that year, and then finally get to Report and final stages on 13 June this year. What a long ride it has had.
The Bill is primarily searching for a problem. Sadly, my noble friend Lord Blunkett could not be with us today, but last week he put it to me that it is all about gesture politics. He said it is “Putting up an Aunt Sally that doesn’t really exist and knocking it down again”. What is the evidence? We have heard views about that. The report of the Joint Committee on Human Rights into free speech at universities in 2018 found that there was no major crisis of free speech on campus. As the noble Lord, Lord Storey, highlighted, the Office for Students said that 0.21% of invitations were rejected. We have heard a lot about the chilling effect, and it has lots of implications; whether it be for financing, through the number of foreign students, or for the number of grants, I have no doubt that it influences the response of institutions.
The noble Baroness, Lady Stroud, referenced the UCU evidence. What I found really interesting about the UCU briefing on this matter is that, when I was at university, academics talked about tenure guaranteeing freedom of speech and guaranteeing academic freedom. Now when a student goes to university, half their teachers are on short-term contracts and likely to be sacked for all kinds of reasons. If that is not a chilling effect on academic freedom, I do not know what is. Let us make sure that we look at the evidence.
My noble friend Lord Blunkett also said to me that this is a distraction from what really matters to the sector and to students. Three out of four students are currently worried about managing financially, one in four have less than £50 a month to live on after rent and bills, and 5% of students are using food banks. In my opinion, that is the real crisis in our universities. Of course, the challenges faced by students reflect what is going on in wider society. As my noble friend Lady Thornton said in her opening speech, unlike the Conservatives over the years, Labour has always championed free speech. It was a Labour Government who introduced a law guaranteeing freedom of expression.
What have we got here? We have a Bill that has gone through the Commons and that will create a director for freedom of speech and academic freedom on the OfS board, as well as a new OfS registration condition on free speech, strengthening an existing duty known as Section 43. It also introduces a statutory tort, giving private individuals a right to seek redress for loss incurred as a result of a breach of Section 43, and so-called enhanced contractual protections for academics with regard to academic freedom. It is very difficult to see that given the stats which I have just mentioned. The Bill also has the addition of a duty to disclose overseas gifts and contracts affecting freedom of speech—which no doubt has persuaded some noble Lords to support it.
Across the House, throughout this debate, I have heard the serious reservations of noble Lords about the unintended consequences of these proposals. I listened with great interest to the contribution of the noble Baroness, Lady Deech, whom I do not often agree with but on this one I completely agree with her. It is those unintended consequences that we should be most worried about. The Bill reflects a top-down, one-size-fits-all approach, which the noble Viscount, Lord Eccles, referred to. It demonstrates a weakness at the heart of the Government and their misplaced lack of trust in the academic community.
I hope the noble Earl will address the concerns raised in the debate, which are shared not only by noble Lords across the House but by the sector. We need to know how the Bill will interact with existing legislation and other duties which relate to free speech and academic freedom, including, as my noble friend highlighted, the proposals to reform the Human Rights Act. Ministers have claimed that the new statutory tort would be a backstop, but what safeguards will there be to ensure that it does not lead to universities having to defend themselves against vexatious and frivolous claims brought by anti-vaxxers, Holocaust deniers and hate preachers?
We have also heard, from the right reverend Prelate the Bishop of Coventry, about the interaction between the role of the OfS free speech complaints scheme and the director for freedom of speech and academic freedom, and how they will interact with existing ombudsman and, as the noble Baroness, Lady Deech, said, the Office of the Independent Adjudicator for Higher Education. We also believe, on these Benches, that there should be a requirement for the new director for freedom of speech to consider competing freedoms when investigating free speech complaints.
The noble Lord, Lord Johnson, raised overseas donations —a late addition to the Bill. As the noble Lord said, will the Government ensure that duties on overseas funding are targeted with risk-based exemptions and proportionate reporting? What sort of extra duties will be placed on universities? We need to have a proper assessment.
I have no doubt that we will return to these issues in Committee. I repeat my noble friend’s assertion: we will be tabling amendments to ensure that an independent appointments procedure is used for the post of director for freedom of speech, and also to ensure it is not a party-political appointment. I do hope the Minister will respond to her questions, specifically those about the post being advertised, the job description, and the requirements of the person specification for the job, which does not seem to address what we are being told the job is about. Certainly, with a closing date of 13 July, will we see this appointment being made before parliamentary approval?
Labour will also seek to broaden the definition of academic freedom, to include for example, criticism of institutions, conducting research and joining a union—something that I think is fundamental to a free and democratic society—and will also propose, as my noble friend said, a sunset clause to the legislation.
There is one thing I wanted to return to in more detail. If there is a problem—and I have heard from noble Lords and I accept there are issues to address—is this legislation the best way to deal with it? Surely, adopting and promoting best practice in our universities and with academics and teaching staff is the real answer. We have a sector that leads the world, and I understand the view of Universities UK that it is important that additional legislation and duties placed on universities that seek to address the small number of incidents that we have heard described this evening need to be proportionate. I have heard and read that Universities UK has stated its willingness to work with the Government on the Bill to demonstrate their members full and firm commitment to freedom of speech, which I think I have heard from across this House. But what I find most disappointing about the Government’s attitude is they have not really examined the vast array of really good practice. How do we encourage good practice? The Manchester guidelines, the Chicago principles or even Robert French’s independent review of freedom of speech in Australian higher education—to name but three—show countries around the world have similar issues, but the point is how they go about addressing them.
If the Government were really interested in promoting and protecting freedom of speech and academic freedom, they would seek to encourage this approach across the sector, as I think was referred to by the noble Viscount, Lord Eccles. It would be far more effective and would not have the unintended consequences that this proposed legislation would have. Such approaches would go a long way to fostering the healthy culture of debate that we all want on our campuses. We have to understand that, sometimes, institutions and student unions will get it wrong. That is the nature of debates on the parameters of free speech, but it is a small price worth paying for a collective and more consensual approach to protecting freedom of speech on campus.
I have heard about the competing pressure on freedom of speech, safe places and respect. As a student 45 years ago—or maybe longer, I suppose—as a young gay person trying to study in that environment, actually, disrespect did turn into hate speech, and hate speech turned into violence. Do not think of words as simply a painful experience, if they encourage violence. That is what we experienced with Section 28—words that said that you cannot preach something in schools because it is a danger to children. That was in Section 28, and it is what we must guard against. Respect is about respecting all; it is not just about a difference of opinion. I want debate but I also want to protect individuals.
Her Majesty the Queen’s Platinum Jubilee
Lord Collins of Highbury Excerpts(4 years, 2 months ago)
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Lord Collins of Highbury (Lab)
My Lords, it is a great privilege to follow the noble Baroness the Leader of the House in paying tribute to Her Majesty the Queen. It is also a pleasure and privilege to speak from these Benches to offer Her Majesty our congratulations on the occasion of her Platinum Jubilee.
Members of your Lordships’ House are no strangers to long periods of public service. We are all motivated by the desire to serve the people and improve their lives but I am sure your Lordships will agree that Her Majesty is in a league of her own. In duration and dedication, no one can compare. Her sense of duty is well known to us all.
Her Majesty is rightly respected for her almost complete avoidance of party-political controversy during her long reign. This is all the more remarkable, given that she is from a trade unionist background. Her mother and father were honorary bummarees —porters at Smithfield meat market—and members of my union, then the Transport and General Workers’ Union, now of course better known as Unite. The Queen Mother was delighted to be a member; she and George VI were admirers of the union’s former general-secretary Ernest Bevin, who of course went on to serve as a distinguished member of the war Cabinet and as Foreign Secretary. He is one of my personal heroes but I know that he was hugely respected by both King George VI and the Queen Mother, Queen Elizabeth, but also by Her Majesty the Queen.
As the noble Baroness the Leader of the House said, Her Majesty is of course the head of the Armed Forces. This is a role that she has always taken seriously. We all have memories of Trooping the Colour and her leading Remembrance Sunday at the Cenotaph. As the noble Baroness also said, it is not just an official role: it is very much personal to Her Majesty, having many family members who have served and having served herself in the Second World War. As well as numerous visits to military establishments and hosting events for service men and women at royal residences, in 2009 Her Majesty introduced the Elizabeth Cross—the first medal named after a reigning monarch since the George Cross in 1940—which gives special recognition to the families of service personnel killed during military operations and as victims of terrorism since 1948.
In a changing world Her Majesty has been a reassuring, constant presence, the likes of which we may never see again. She has in many ways been a bridge from one era to another, connecting different generations through the decades. Britain in 1952 was a vastly different place from the country we live in today: a nation emerging from the ravages of a world war with rationing still in place. The challenges of the Cold War and the nuclear age were still in their infancy. The NHS was only four years old. There was just the one TV channel and only 150,000 homes even had access to a television set—no personal computers, no mobile phones and no internet.
Fast forward 70 years and not only has the technology transformed all our lives, mostly for the better, but our society is a very different place. We are now a much more diverse and vibrant country, being home to people from across the globe. Opportunities for women have been transformed, although there is still a long way to go. In 1952, I could not have married my husband; in fact, I would have been at risk of arrest and prosecution just for being who I am. But as our country has changed, so too has the Queen. Everyone changes over the years but Her Majesty has adapted and modernised the monarchy in ways that mean that even many republicans have huge personal admiration and affection for her.
The Queen is the personal embodiment of the nation and a huge asset to us all. Instantly recognisable across the globe, she has met almost every significant world leader of the past 70 years. More importantly, they have all wanted to meet her. We often talk about soft power in this place and Her Majesty epitomises it. Politicians come and go, and some are more loved than others, but to maintain the Queen’s levels of respect and popularity over seven decades takes a real talent.
Ten years ago on the occasion of the Diamond Jubilee my noble friend Lady Royall, the then Leader of the Opposition, spoke about the falling esteem in which politics and politicians are held—sadly, a situation little improved, if not worse, a decade on. She contrasted this with the affection for Her Majesty and said we had much to learn from her. I know it is a recipe that we all wish we knew the ingredients of, but we can take a guess at some of them: not only her sense of duty and devotion to public service but a strong work ethic, a love of country and the Commonwealth, and her sense of humour, as the noble Baroness the Leader of the House mentioned.
As the noble Baroness said, Her Majesty also had the love and support of the Duke of Edinburgh. Prince Philip was a remarkable individual in his own right: outspoken, sometimes irreverent and at all times totally human, his support has been vital. As consort of the monarch for some 69 years, he not only provided invaluable support for Her Majesty but made a huge impact on the life of our country in his own right. The noble Baroness mentioned the Duke of Edinburgh’s Award, which has impacted the lives of countless young people here in the UK and in some 144 countries worldwide. Over the years since its founding in 1956, many leaders from the arts, business and politics have undertaken the awards. The promotion of volunteering, physical exercise, the development of personal skills and exploration is of great benefit not only to the participants but to their communities and countries. It is a legacy that will endure. Sadly, I got lost on my orienteering exercise on Chobham Common so I never made it past the bronze stage.
Let this Platinum Jubilee be a celebration of community, selflessness and serving others: a celebration of all that is positive about our public life and institutions, a break from the usual daily diet of cynicism and scepticism, and a truly national celebration of a Head of State like no other.