Higher Education (Freedom of Speech) Bill Debate

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Higher Education (Freedom of Speech) Bill

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Baroness Garden of Frognal Portrait Baroness Garden of Frognal (LD)
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My Lords, it is a pleasure to follow the noble Lord, Lord Johnson, who was a very open-minded higher education Minister. This has been a fascinating debate, but quite disconcerting. We have just been dealing with the Schools Bill, a Bill so bad that three Conservative Education Ministers have called for it to be terminated, and now we face another Bill which appears unnecessary, irrelevant and possibly harmful too. When Gavin Williamson, the then Education Secretary, introduced it in the Commons, he was constantly interrupted with questions, complaints and observations from all sides about why the Government were wasting time on such a Bill. We do not interrupt in our House, we listen courteously, and I thank the noble Earl the Minister for carrying out the hapless task of trying to convince us that this Bill is worth our time and trouble.

Higher education institutions are more than aware of the importance of freedom of speech. It is important that young people should be exposed to views contrary to their own, in a caring and learning environment where views should be respected but most certainly challenged where they are prejudiced, ignorant or harmful. No one has a right not to be outraged or offended, although increasingly some young people feel that they should not be exposed to views contrary to their own. I remember a number of revolting students at Oxford in the 1960s and some very robust debate, but I do not think that any of us suffered from it.

The recent HEPI survey, which my noble friend Lord Wallace referenced, is disturbing in the number of young people who do not seem to want to operate outside their comfort zone. But why is this Bill needed? An assessment by the Office for Students found that just 53 out of 59,574 events with external speakers were refused permission in 2017-18. Perhaps that was an unusually slow year for cancel culture and there is a real problem. However, the Bill comes before we have had a proper national public debate about where we think the acceptable boundary sits between speech that is offensive or hurtful but that ought to be permitted under the Bill, and speech that is harmful, divisive and, although perhaps not unlawful, has no place on campus. We have not had that debate, so the Government are rushing into legislation before we have much tangible evidence of the boundaries of acceptability.

Freedom of speech and the free exchange of ideas in pursuit of truth and knowledge are central to our universities’ whole purpose, but where is the evidence that there is a problem? This Bill is unnecessary and unclear. There is a real risk that our universities will be subject to vexatious and frivolous claims, which will cause distress and waste time and may make universities more risk-averse and more cautious about whom they invite to speak. So students will not be exposed to contrary views or be able to frame arguments and responses in defence of their own views.

Of course, we have a right to free speech. We need to be able to challenge people whose views are different from ours. Informed public debate is a vital element of a democratic society. It is vital to academic freedom, however difficult and contentious it might be, but, as has already been mentioned, we already have laws to protect free speech in the Education (No. 2) Act 1986. We really do not need any new laws, particularly ones as contentious as this. We have an Office of the Independent Adjudicator for Higher Education—and our thanks to the noble Baroness, Lady Deech, for that. Why can it not deal with any problems in this area? The new director seems to have alarming powers, apparently without the need for any legal background.

I turn to no-platforming. As we have already heard, in 2019-20, of almost 10,000 events involving an external speaker, just six were cancelled—that is 0.06%. It is not a major problem and the heavy-handed proposals in this legislation are certainly not justified or needed. It has been said that this is an authoritarian sledgehammer to crack a nut. It might well give universities a reason to stop holding events that would broaden students’ minds.

We oppose the Bill. It is not based on evidence and is not proportionate. Worst of all, it actively undermines the very principle of free speech that it claims to support. Free speech is about the right of every individual to speak truth to power, but the Bill does the opposite. It gives those in power or with power the ability to determine who is free to say what. Far from protecting our freedoms, it is yet another example of the Government’s concerted efforts to take our freedoms away. Given that universities are already required to protect freedom of speech and that research suggests that no-platforming is incredibly rare, the Government should drop this Bill entirely.

As others have said, the likely consequence of all this is that universities and student unions will err on the side of caution and steer away from anything risky—in other words, not more free speech but less—and for those with really outlandish views, there will be a legal stick with which to beat institutions. We have already heard from the noble Baroness, Lady Royall, the great quotation of the principle:

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


We have wasted enough time on the Schools Bill. Please do not make us waste yet more time on this one.

Higher Education (Freedom of Speech) Bill Debate

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Higher Education (Freedom of Speech) Bill

Baroness Garden of Frognal Excerpts
Baroness Smith of Newnham Portrait Baroness Smith of Newnham (LD)
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Sorry, Amendment 15. This just demonstrates that the profession I need to go to is my optician, which kindly cancelled my appointment.

Amendment 15 is very much to think about to what extent this is about particular academic standards. I suggest that it is in effect probing, although my noble friend does not say that.

The next amendment, which I think we all take as being Amendment 16, is to omit

“and controversial or unpopular opinions”.

This is not necessarily to say that these things should not be there, but in the debate on an earlier group of amendments the Minister pointed out that beliefs and views are not the same and that beliefs are protected under the Equality Act. But then there is the question of where we put unpopular opinions. They are not beliefs. Are they views? Should they be in there? My noble friend’s question here is about whether we should expect academics to put forward views based on evidence. Here the noble Baroness, Lady Fox, has a point, because while we would expect to look for evidence, at some point in the intellectual journey you might be looking for evidence and not yet have found it—but presumably we would want the views that academics espouse to be at least based on something that goes beyond the whole QAnon idea of fake news and invented facts. Do the Government have a view on that?

In Amendment 20, my noble friend is again concerned about practicality. To what extent should the Government expect to be involved, or expect the law to be involved, in the way higher education institutions are engaging in promotion and looking at the way people are appointed within higher education institutions? We are not necessarily suggesting in any way that people’s jobs should be put at stake, or indeed that they should not be promoted, but this is a probing amendment to understand how far this legislation is intended to go.

Finally, I suspect the last word from me today is on Amendment 23, also in the name of the noble Baroness, Lady Bennett of Manor Castle. Again, to what extent can the Government and the law be involved? What is the Government’s intention here? How far do they intend to interfere further in higher education institutions?

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Lord Moylan Portrait Lord Moylan (Con)
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My Lords, I shall speak briefly in support of the noble Baronesses, Lady Fox of Buckley and Lady Falkner of Margravine, and my noble friend Lord Johnson of Marylebone in opposing Amendment 15. The noble Baroness, Lady Falkner, referred to the 50th anniversary of a seminal book. I think it would be odd if we got through a debate on universities without referring to the fact that it is roughly 170 years since Cardinal Newman published his lectures, known as The Idea of a University, probably the first attempt in the 19th century to define what a university looked like and what it was for. I have a familiarity with every single line of that book because, when I was a schoolboy, I proofread the standard current Oxford authoritative edition for its editor, Father Ian Ker. Indeed, a very minute examination of the acknowledgements would reveal that to be the case.

We are discussing this in a very modern way, but there are two things we can take away from Newman that really are very important and relevant to this amendment. The first is that the word “university” implies universal; that is, there are no bounds on the fields of inquiry to which a university can go. The second is that, for Newman, this is a collective endeavour. We are discussing this as if the advancement of knowledge was to be followed only by individuals with specific expertise in certain areas, and as if the sharing and communication of knowledge among them—be it through papers, through social engagement or simply through having dinner together and discussing things—was not a crucial part of that endeavour. I simply urge those two points at this stage. It seems to me that Amendment 15 is wholly misconceived as to how knowledge is advanced and what a university actually is and should be.

Baroness Garden of Frognal Portrait Baroness Garden of Frognal (LD)
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My Lords, Amendments 15 and 16 were probing amendments, so I do not think my noble friend Lord Wallace will be totally mortified to discover that the entire Committee is not in favour of them.

Earl of Leicester Portrait The Earl of Leicester (Con)
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First, I apologise for not attending Second Reading; I could not be here. I shall speak very briefly against Amendment 16 because I think it is very dangerous to leave out “controversial or unpopular opinions”. Newton had a particularly controversial opinion, Einstein too, and Galileo’s opinion on Copernican heliocentrism, which for you and I is the earth rotating daily and revolving around the sun, was met with opposition by the Catholic Church; he was tried under the Roman Inquisition in 1615 and spent the rest of his life in house arrest. To suggest that we remove the words “controversial or unpopular opinions” is, I think, very dangerous.

Higher Education (Freedom of Speech) Bill Debate

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Higher Education (Freedom of Speech) Bill

Baroness Garden of Frognal Excerpts
Moved by
47: Clause 3, leave out Clause 3 and insert the following new Clause—
“Duties of students’ unions
(1) Section 22 of the Education Act 1994 is amended as follows.(2) In subsection (1), at end insert “and secures freedom of speech within the law for members of the students’ union, students of the provider, staff of the students’ union, staff and members of the provider and of its constituent institutions, and visiting speakers.”(3) In subsection (2), at end insert—“(o) the use of any premises occupied by the students’ union is not denied to any individual or body on grounds in relation to an individual or society or other body’s ideas, beliefs or views;(p) the terms on which such premises are provided are not to any extent based on such grounds;(q) affiliation to the students’ union is not denied to any student society on such grounds; (r) use by any individual or body of premises occupied by the students’ union is not on terms that require the individual or body to bear some or all of the costs of security relating to their use of the premises.”(4) After subsection (3) insert—“(3A) The code of practice shall set out—(a) the students’ union’s values relating to freedom of speech and an explanation of how those values uphold freedom of speech;(b) the procedures to be followed by its staff and its members who are students of the registered higher education provider in connection with the organisation of—(i) meetings which are to be held on the premises occupied by the students’ union and which fall within any class of meeting specified in the code, and(ii) other activities which are to take place on those premises and which fall within any class of activity so specified;(c) the conduct required of such persons in connection with any such meeting or activity; and(d) the criteria to be used by the students’ union in making decisions about the union’s support and funding for events and activities to which the duties in this section are relevant, and whether to allow the use of premises and on what terms.””Member’s explanatory statement
This amendment suggests an alternative method for placing duties on students' unions by amending the Education Act 1994, and along with the proposed removal of clause 7 seeks to probe whether the OfS should directly regulate SUs or whether they should be regulated via the relevant provider.
Baroness Garden of Frognal Portrait Baroness Garden of Frognal (LD)
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My Lords, I will also speak to the Clause 7 stand part notice in my name and that of my noble friend Lord Wallace, who is absent. I note with interest that the noble Baroness, Lady Fox, referred earlier to the HEPI report on students, which made interesting but fairly depressing reading—particularly with regard to students these days being very reluctant to discuss anything with which they disagree.

These amendments are at the requests of students and student unions, which are very concerned that provisions in this Bill could involve them in costly, time-consuming administration and litigation. Our revised Clause 3 aims to provide clarity on the responsibilities for freedom of speech in a more student-friendly manner. We were also alerted to the problems of geography. Many higher education providers have operations overseas. Does free speech “within the law” mean the law at home or away? There are many Welsh and Scottish higher education providers that have campuses in England as well. Will these duties apply to all of them?

We note that student unions are not public authorities and so are not subject to regulation in the same way. Many of them may be tiny theatre providers; they may be further education providers with a handful of higher education students. Their governing bodies may be a small group of 17 year-old students. Are the provisions in Clause 3 really appropriate for such unions?

If Clause 3 is bad, Clause 7 is even worse. We read in that clause that an individual would be able to refer their complaint to the Office for Students complaints scheme at the same time as pursuing it through a provider or the student union’s internal procedures, which would surely be the appropriate way. It could also be addressed by the Office of the Independent Adjudicator for Higher Education, or a court or tribunal. How confusing and cumbersome this is. Surely such complaints should not be escalated; rather, they should be dealt with at the lowest possible level. Currently, the adjudicator considers students’ complaints only once the local process has been completed. For the Office for Students to rush in with a monetary penalty would surely be untimely and disproportionate. We really feel that this is not a reasonable use of the Office for Students’ powers.

At a later date, we shall come on to discuss the director of freedom of speech and academic freedom. It is not at all clear how that post will fit in with all these other complaints processes.

As I say, these amendments have been tabled at the request of students and student unions. On that basis, I beg to move.

Lord Triesman Portrait Lord Triesman (Lab)
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My Lords, this is probably the only appropriate place to raise this point. There was a debate earlier in which my friend, the noble Lord, Lord Smith of Finsbury—he may be on the Cross Benches but he is steadfastly a friend—and the noble Baronesses, Lady Fox and Lady Smith of Newnham, took part, about what the core functions of a university are and what its DNA is. I do not resile from what I said about the role of a university in the development of knowledge and the challenge to knowledge, but I would not for a moment suggest that that is the only function.

I come to the other thing that I think universities are fundamentally there for, because the students and student unions are so central to it. Universities are also the place where we see the transmission of knowledge between generations. They are the place in which we try to instil in students the methods best suited to elaborate knowledge and to challenge all spheres of knowledge, and to do so in a way that reflects the fact that it is a community. Those are also fundamental obligations of a university, and it would be very foolish if we were to neglect them.

The strength of the very word “collegiality” is that it means we believe that, in a collegial environment, people should not suppress the views of others, silence others or interfere with their individual rights. Apart from overcoming those negatives, it also cements together a community that has, if I may put it this way, a mutual obligation to proceed with respect. In my view, that is quite central to the DNA of a university.

I make these points because those frequently relatively young people—although it is a much more diverse age group now—are central to what we think about when we think about what universities do and how they should do it. Indeed, we have embodied in other legislation measures to deal with the quality of teaching to ensure that this part of what universities do is at the best standard that can be achieved, and we punish them by not letting them have gold stars or whatever if they fail to do it. Student unions are a part of that education provision, part of that community, and what we try to impose on them becomes extremely significant.

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The Bill places clear, direct duties on student unions and gives the OfS a mechanism to regulate and enforce them. I hope noble Lords will agree that the Bill as currently drafted represents the best way of regulating student unions as regards freedom of speech.
Baroness Garden of Frognal Portrait Baroness Garden of Frognal (LD)
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I thank the Minister very much for his reply and all those who have spoken in this short debate. There are more issues that we might need to bring back on Report, but meanwhile I beg leave to withdraw my amendment.

Amendment 47 withdrawn.

Higher Education (Freedom of Speech) Bill Debate

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Higher Education (Freedom of Speech) Bill

Baroness Garden of Frognal Excerpts
We must understand that academic leaders are unlikely to take action against speakers, academics, students or staff for a simple difference of opinion but, once the allegation is made that personal safety has been jeopardised, they are obliged to take action. The elision of words and violence is a linguistic trick that has been weaponised on campus with ruthless efficiency and caused a great deal of damage. I want to remove feeling safe completely from this amendment.
Baroness Garden of Frognal Portrait Baroness Garden of Frognal (LD)
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My Lords, I rise to speak to my noble friend Lord Wallace of Saltaire’s contention that Clause 8 should not stand part of the Bill. He is back from his holidays but is speaking at the funeral of a very old friend in Bradford. He is very regretful that he cannot be here with us for the Bill, about which he cares so much.

This amendment harks back to the passionate speech of the noble Baroness, Lady Deech, at Second Reading, in support of the Office of the Independent Adjudicator. She was critical in setting it up and said it was doing a decent job. It exists and does a reasonable job of dealing with complaints, but Clause 8 is a complete duplication of bureaucracy. We noted that it was recommended by a Policy Exchange paper, but we do not have to do everything that Policy Exchange tells us to do. This clause will impose considerable additional costs but where are the benefits of this? Surely the Office of the Independent Adjudicator should be able to sort out most of the issues in this clause.

Anyway, universities should be able to manage their own complaints themselves, which most of them do very adequately. Mistakes will of course be made occasionally, but we cannot necessarily assume that state intervention will do better in most cases than the universities themselves. This very lengthy clause, with lots of duplication, is surely not necessary. I am sure my noble friend Lord Wallace would have put it much more passionately, but we simply propose that there is no need for this clause in this Bill.

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

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

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

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

Higher Education (Freedom of Speech) Bill Debate

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Higher Education (Freedom of Speech) Bill

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Lord Moylan Portrait Lord Moylan (Con)
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I am happy to take the historical dispute offline, as they say, and discuss it with the noble Lord afterwards.

Our concept of freedom of speech in traditional English law is broader. It concerns not merely things that are said in the press but what you might say at Speakers’ Corner, among your friends or in colleges and universities. Amendment 10 seeks to root the notion of the legal framework in which we are considering freedom of speech in that broader English common-law tradition. I see a relatively clear contrast between the two, which is why I had no hesitation in supporting Amendment 10. I am happy to acknowledge the discussions I had with the noble and learned Lord about it before he tabled it.

It seems that the Government are not taking either of those clear choices. They have come up with a third option, which frankly I regard as a little bit of a muddle. In the first place, it seeks to root the legal framework within which we are to understand freedom of speech in Article 10, but it refers specifically to Article 10(1).

As the noble and learned Lord said, Article 10(1) is perhaps the positive part of Article 10. It is the part that goes out and says, “Freedom of expression is very important and has to be protected”. It is paragraph 2 of Article 10 that goes on:

“The exercise of these freedoms”


and so forth

“may be subject to such formalities, conditions, restrictions or penalties”

for various purposes, which it then lists. I will not detain the House by reading them out, but it is the restrictive part.

There is no mention of the second part of Article 10 in the Government’s amendment. Ministers with whom I have had the benefit of discussions about this, for which I am grateful, have said to me that it is clear they intend this to be a freedom which is consistent with what I have described as the English common-law tradition of freedom of speech. That brings me to the question: if that is what they mean but they still wish to root it in Article 10, what has happened to its paragraph 2? Does the Government’s amendment mean that paragraph 2 is disapplied in relation to the understanding of freedom of speech as it is to sit in the Bill, following their amendment? As drafted, the amendment is pregnant with paragraph 2, but we do not know whether the birth is going to take place. What is the role of that part of Article 10 in this?

My own view is that the Government have a lot of explaining to do on this late amendment to try to make clear to your Lordships what is being achieved. If this is the right means of achieving it and their intention is to have a broad understanding of freedom of speech, why are they rooting it in Article 10 in the first place and what has happened to the second part of that? Would it not be much better if my noble friends on the Front Bench simply opted for one of two amendments tabled by the noble and learned Lord, ideally Amendment 10?

Baroness Garden of Frognal Portrait Baroness Garden of Frognal (LD)
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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 Portrait Lord Collins of Highbury (Lab)
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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.

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Lord Triesman Portrait Lord Triesman (Lab)
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My Lords, I want to make a brief point, because I know that everybody wants to make progress, but free speech is also important. I could well understand a code of practice of this kind, and I too am very grateful to the Minister for discussions on this. A code of practice can make a difference to the way in which societies that are part of a student union or student unions understand what their responsibilities are. I am not sure that they always understand what the criminal law does or does not say, and it is certainly the case that some of the institutions within universities that used to play significant role, including the union of which I had the privilege of being the general secretary, do not understand it any more and do not apply it any more in an appropriate way, and that itself is a significant problem. I am horrified by that.

However, I would like to know from the Minister that the codes of practice will also tell individuals what they are or are not expected to do. By and large, we construct our law—there are lawyers here who will tell me if I am wrong—so that individuals know what their responsibilities are and do not simply say that they are hiding behind some kind of collective. It is their responsibility. Academic freedom is based around individuals understanding their duties and responsibilities just as much as any of the groups. If we want this to work, it is vital that we do not lose that distinction.

Baroness Garden of Frognal Portrait Baroness Garden of Frognal (LD)
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My Lords, these amendments all refer to student unions. We have been concerned about the rather heavy-handed approach to student unions in the Bill. Amendment 16, to which my noble friend Lord Wallace has added his name, seeks to ensure that student unions are fully aware of the regulations with which they must comply. We are particularly concerned in connection with further education student unions, which are likely to be very small and have very few funds available. Presumably they are included in the Bill. The regulations are complex and students will obviously be transitory in post, so simplicity of guidance is essential if they are not to find themselves caught up in unwittingly breaching the rules, as the noble Lord, Lord Triesman, has just set out. This amendment would be a very straightforward way of helping students, and it would be very easy to adopt.

Like others, we support the intention of Amendments 11, 15 and 25 but we remain unsure about how they could be implemented. As the noble Lord, Lord Macdonald, said, some of these actions may well be criminal behaviour, in which case they do not need to be part of the Bill because they should be something else. I liked the tale told by the noble Lord, Lord Grabiner. There are other ways of dealing with hecklers, and ridicule is often one of the very best. We do not see that these amendments should be in the Bill, but some code of practice or regulation would probably be worth it. However, Amendment 16 is well worth government consideration.

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

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