Viscount Eccles (Con)
My Lords, in following the noble Lord, Lord Desai, I agree with him that the Bill is attempting to deal with very clear problems, but I am not sure it is dealing with them as a matter of detail. I think it also treads on the ground of principles. In following the noble Lord, Lord Desai, I am very conscious of the speech from the noble Lord, Lord Stevens, which I thought was an extremely good exposition of the position.
My question at this late stage in the debate in thinking about whether the Bill will improve the situation for freedom of speech is to wonder about the present regime. It depends predominantly on, I think, Section 43 of the 1986 Act and, of course, on the provisions of the 2017 Act, which set out the OfS.
It is interesting to look at the general duties in Section 2 of the 2017 Act. The first one is
“the need to protect the institutional autonomy of English higher education providers”.
I suppose that we agree with that.
I am not absolutely certain that every provider of higher education quite appreciates the importance of the word “autonomy”. I have a feeling that some providers, in their evidence that led to the Bill, are looking for some shelter or some cover, and my concern is not to give them that shelter or cover, and not to give up on the general duty to protect institutional autonomy, because it seems to me that, for a functioning democracy to work well, it is extremely important that we have autonomous institutions between Parliament and the people. I am not at all clear to what extent it is part of Parliament’s duty or, indeed, in Parliament’s interests, to get directly involved in trying to solve some of the problems that have been articulated this evening.
Indeed, Section 2(8)(a) of the 2017 Act, under “General duties”, which goes somewhat beyond the original list of eight duties, says that the OfS must have regard to
“the freedom of … providers … to conduct their day to day management in an effective and competent way.”
The freedom and indeed the duty to manage day-to-day affairs goes back a long way in our post-war history. It goes back, in fact, to Herbert Morrison and his control, on behalf of Attlee, of the nationalisation programme, where the distinctiveness of day-to-day management was set up and was extremely important to all of us who dealt with those institutions subsequently: on the whole, it worked extremely well. This leads me to say that Parliament should be very careful about eroding that freedom to conduct day-to-day management.
So, in thinking about these problems and thinking about the Bill, which is after all a big insertion into existing legislation—if and when it becomes an Act, it is not actually going to be a separate Act; it is going to be an insertion into the existing Act—we should be very conscious of the fact that it may be that this is not really a matter for Parliament when it comes to how we are going to deal with the problems of today and preserve the freedom of speech. I think we should have one more big effort to say to the higher education providers, “This matter is really up to you. There is sufficient legislation to enable you to carry out these duties, and we see it as being a preferable way of conducting business only to do those things that, after suitable consultation and pre-legislative scrutiny, we agree mutually should be done, rather than that anything is imposed upon you because we have identified a problem and, in our search for votes, we want to put something to Parliament without sufficient care and consideration.”