Higher Education (Freedom of Speech) Bill

Eleanor Laing Excerpts

2nd reading
Monday 12th July 2021 Commons Chamber

Second Reading

[Madam Deputy Speaker (Dame Eleanor Laing)]

I should report to the House that the reasoned amendment in the name of the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) has been selected.

--- Later in debate ---

[Kate Green]

No, I would not like the Secretary of State to intervene again while I am still answering the question he asked me a moment ago. The problem with the Bill and clause 3, which creates a new route for individuals, is that it is more harmful in its effect. It opens up the possibility for vexatious litigants and their lawyers repeatedly to bypass internal complaints procedures, repeatedly to bypass the Office of the Independent Adjudicator route or the Office for Students route and go straight to the courts, undermining confidence in those procedures, undermining the funding of universities and student unions and causing confusion about the routes for redress that speakers should be able to take advantage of.

I am going to make a little bit of progress, because I know that many others want to come into the debate. The Bill before us tonight is wasting legislative time by repeating provisions already found in law to address a problem that has not been evidenced by the debate so far today. I recognise that the Joint Committee on Human Rights raised concerns that the current legislative framework was complex, but the Government’s plans seem only to complicate things further by duplicating legal duties and creating new legally actionable wrongs that would operate in parallel to university and student union processes. It seems impossible that the Bill will leave the position clearer than it is currently.

Let me be generous and assume for a moment that, despite the provisions that already exist in our laws, this Bill is needed, that in the face of the evidence we have heard so far there is a crisis of free speech on campuses and that the Bill will remedy the situation. Let us see if it succeeds on its own terms. It does not. It is a mess of duplication, poor definition and ill-thought-through provisions that will set back free speech. Let me start with an easy problem: the extent of the Bill. It applies to registered higher education providers and to student unions, and immediately we appear to hit a gap in coverage. Oxford and Cambridge colleges are not included in the register kept by the Office for Students. Does that mean that if a violation of free speech takes place in a building owned by, say, Balliol college, Oxford, instead of by the University of Oxford, it is not within the scope of the Bill? Or if it takes place in a pub in the city of Cambridge owned by the university, and someone is removed from the pub for offensive but legal speech, could they take legal action against the university?

Who are members of the university for the purposes of the Bill? MillionPlus, for example, has asked whether it would cover emeritus professors. Is it desirable to risk the Office for Students, a body whose board is appointed directly by politicians, effectively becoming a state censor of controversial topics? Why does the Secretary of State believe that clause 3 is needed? Why does he think that we need a route straight to court, bypassing university complaints procedures? If he does believe that a route to court is necessary, can he say whether there will be any limit on the damages that could be awarded? Does he not understand that, as Universities UK has warned, this risks giving a free pass to vexatious litigants and their lawyers?

Even if we thought the Bill were needed, it is poorly drafted and counterproductive. Today, we are debating a Bill that has been put forward in response to a problem that exists largely in the mind of the Secretary of State. Even if the problem did exist, the Bill would not be needed because its core provisions already exist in our laws, and even if new legislation were needed, the Bill creates more problems than it solves and is poorly drafted. In short, in every way that a Bill can fail, this Bill fails.

However, the real menace is what the Bill will achieve if the Conservative party is able to get it on to the statute book. It will enshrine legal protections for harmful and divisive speech. The kind of speech that we would not tolerate in this House would be protected in universities across the country. The Bill creates a new legal framework that allows for those responsible for such harmful speech to take legal action against universities, eating into the resources that ought to be educating our young people and supporting our world-class research programmes. The Bill is unnecessary and it is poorly drafted, but above all, it is deeply wrong and those of us on the Labour Benches will not support it. I commend our reasoned amendment to the House.

[Madam Deputy Speaker (Dame Eleanor Laing)]

As the Chairman of the Education Committee, the right hon. Member for Harlow (Robert Halfon), is now unable to take part in the debate this evening, we will go directly by video link to Carol Monaghan. Just before the hon. Lady begins, I should tell the House that after her speech there will be an immediate time limit of eight minutes, and that that could soon be reduced to a much shorter time limit, depending on how many Members decide at the last minute not to speak, which is a phenomenon that we face quite often at present. That is why we will start with a generous time limit; it is up to Members how we progress after that.

Higher Education (Freedom of Speech) Bill

Eleanor Laing Excerpts

Report stage
Monday 13th June 2022 Commons Chamber

[The Minister for Higher and Further Education (Michelle Donelan)]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dame Eleanor Laing)]

With this it will be convenient to discuss the following:

New clause 1— Duty to disclose overseas gifts and contracts affecting freedom of speech—

‘In section A3 of the Higher Education and Research Act 2017 (inserted by section 1), at end insert—

“(2) Whenever a registered higher education provider, or any of its members, employees, departments or associated bodies, enters into a disclosable arrangement with an overseas counterparty, its governing body shall, as one part of discharging the duty to promote the importance of freedom of speech and academic freedom in subsection (1), promptly report the required information about such arrangement to the OfS and the Secretary of State.

(3) By 30 April each year, the OfS shall publish on its website a searchable report which contains all required information which has been disclosed to it pursuant to subsection (2) above in the preceding year.

(4) If the governing body of a registered higher education reasonably believes that the publication of the identity of the overseas counterparty pursuant to subsection (3) or subsection (6) might present a risk of serious harm to any natural person, it may notify the OfS and will provide such information as the OfS may require to investigate such risk(s).

(5) If, following a report under subsection (4) above and such investigation as it considers appropriate in the circumstances, the OfS finds that the publication of the identity of the overseas counterparty pursuant to subsection (3) or subsection (6) might present a risk of serious harm to any natural person, then it may redact such information from its report.

(6) By 30 April 2023, the governing body of each registered higher education provider shall report to the OfS and the Secretary of State the required information of any disclosable arrangement which it, or any of its members, employees, departments or associated bodies, entered into during the ten years prior to this section coming into force, and the OfS shall publish such information on its website in a searchable report by 30 April 2024.

(7) If the registered higher education provider fails to comply with this duty, the OfS may enforce compliance in civil proceedings for an injunction.

(8) In this Part—

(a) “associated bodies” means any company, institution, trust, organisation or similar body or group in respect of which the relevant registered higher education provider has significant control or ultimate beneficial interest;

(b) “disclosable arrangement” means any formal or informal contract, gift or other arrangement by which a financial or other advantage is offered, promised or given to a registered higher education provider or any person or body mentioned in subsection (2) above, whether conditionally or unconditionally, which is equal to or exceeds £50,000 (or would equal or exceed such value in combination with other potentially disclosable arrangements entered into with the same overseas counterparty, or connected overseas counterparties, within the previous twelve months);

(c) “overseas counterparty” means—

(i) any natural person who holds citizenship of, or is domiciled in, any country or territory outside the United Kingdom (or any subdivision of such a country or territory);

(ii) any government, organisation, institution, company, foundation, legal person, trust, or similar body or group which is registered, incorporated, headquartered or carries out significant activities in any country or territory outside the United Kingdom (or any subdivision of such a country or territory) or in respect of which ultimate beneficial ownership or significant control resides in a person falling within subsection (c)(i) above; or

(iii) any person acting in any capacity for or on behalf of any person who would fall within subsection (c)(i) or (c)(ii) above if they were acting on their own account;

(d) “required information” means—

(i) the exact value of the relevant disclosable arrangement(s);

(ii) the identity of the overseas counterparty and the name of any relevant country or territory (and, if relevant, such information about the person(s) for whom they are acting or in whom ultimate beneficial ownership or significant control resides);

(iii) the date on which the relevant disclosable arrangement(s) was entered into;

(iv) details on the general purpose of the relevant disclosable arrangement(s); and

(v) any specific stipulations or obligations imposed on the registered higher education provider or any of its members, employees, departments or associated bodies (including, but not limited to, any changes to any curricula, governance or control of them).””

This new clause seeks to introduce transparency and public reporting of foreign donations to universities, in order to promote freedom of speech and academic freedom, and increase public confidence in universities.

New clause 3—Duties regarding language and cultural programmes—

In section A3 of the Higher Education and Research Act 2017 (inserted by section 1), at end insert—

‘(2) Whenever a registered higher education provider enters into partnership with an overseas organisation to deliver foreign language, culture or exchange programmes or courses, its governing body must, as one part of discharging the duty to promote the importance of freedom of speech and academic freedom in subsection (1), promptly report the required information about the partnership to the OfS and the Secretary of State.

(3) In response to the information received under subsection (2), and where there are concerns regarding the effect of the partnership on freedom of speech and academic freedom, the Secretary of State may issue a direction to the registered higher education provider.

(4) A direction under subsection (3) may be either to—

(a) terminate the partnership, or

(b) offer an equivalent range of programmes or courses delivered in partnership with an alternative organisation.

(5) In this Part, “required information” means—

(a) the financial value of the partnership;

(b) any specific stipulations or obligations imposed on the registered higher education provider or any of its members, employees, departments or associated bodies (including, but not limited to, any changes to curricula, governance or control of them).”

New clause 4—Appointment of the Director for Freedom of Speech and Academic Freedom—

‘(1) A person may not be appointed as the Director for Freedom of Speech and Academic Freedom (‘Director’) if the person has at any time within the last three years made a donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.

(2) The person appointed as the Director may not whilst in office make any donation to a political party registered under the Political Parties, Elections and Referendums Act 2000.

(3) The appointment for the Director shall be made by an independent advisory panel to be established by regulations made by the Secretary of State.

(4) The appointment of the Director for Freedom of Speech and Academic Freedom shall be subject to a confirmatory resolution of the relevant Select Committee of the House of Commons.

(5) A statutory instrument containing regulations under subsection (3) may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”

This new clause would ensure that the Director of Freedom of Speech and Academic Freedom has not and cannot whilst in office donate to a political party and ensure they are only appointed subject to confirmation of an independent advisory panel, the Select Committee of the House of Commons and a resolution of each House of Parliament.

New clause 5—Sunset clause—

‘(1) This Act expires at the end of the period of 3 years beginning with the day on which it is passed.

(2) A Minister of the Crown may by regulations made by statutory instrument remove any of the provisions of this Act after one year from the day on which it is passed if he is not satisfied that the provision is working as intended.

(3) Before three years from the day on which this Act is passed a Minister of the Crown must present to Parliament a written report on the effectiveness of the provisions of the Act.

(4) A Minister of the Crown may by regulations made by statutory instrument renew this Act, subject to parliamentary approval in full or in part, or make transitional, transitory or saving provision in connection with the expiry of any provision of this Act.

(5) Regulations under this section shall be subject to the affirmative procedure.”

This new clause would mean the legislation would have to be renewed by Parliament after a period of three years.

New clause 6—Academic staff: interpretation—

‘(1) Section 121 of the Higher Education and Research Act 2017 is amended as follows.

(2) After “Act—” insert—

“academic staff, for the purposes of any provision inserted by the Higher Education (Freedom of Speech) Act 2022, includes any academic staff (however engaged or employed), honorary, visiting and emeritus academic members of a provider and any other person held out as holding any academic position at the provider;””

New clause 7—Harassment—

In section 26 of the Equality Act 2010, after subsection (4)(c) insert—

“(d) when A is a student or a member of the academic staff of a registered higher education provider and the conduct took place in the context of a discussion in a higher education setting—

(i) the importance of freedom of speech and academic freedom, as provided for under Part A1 of the Higher Education and Research Act 2017 (as inserted by section 1 of the Higher Education (Freedom of Speech) Act 2022), and

(ii) whether A intended to harass B, or was reckless as to whether A’s conduct constituted harassment towards B.”

Amendment 21, in clause 1, page 2, line 2, at end insert—

“(3A) Any conduct that would otherwise constitute conduct having the effect of harassment in accordance with section 26(1) of the Equality Act 2010 shall, notwithstanding any provision to the contrary in that Act, constitute freedom of speech within the law for the purposes of subsection (2), provided that—

(a) the conduct constitutes, or forms part of, discussion of an academic or scientific matter in a higher education setting, and

(b) the person engaging in such conduct did not know or could reasonably not have known that it would have the effect of harassment.”

Amendment 19, in clause 1, page 2, line 6, at end insert—

“(4A) The objective in subsection (2) includes securing that no person listed in paragraphs (a) to (d) of subsection (2) is deprived of an ability to speak freely as a result of a non-disclosure agreement or confidentiality agreement between that person and the governing body of the registered higher education provider.

(4B) The provision in subsection (4A) does not prevent the use of a non-disclosure agreement in any case where the governing body and academic staff member agree that a non-disclosure agreement or confidentiality agreement is necessary for the protection of intellectual property.”

This amendment would ensure that non-disclosure agreements or confidentiality agreements between those listed on the Bill and a higher education providers does not inhibit the freedom of speech for those concerned, save where it is agreed to protect intellectual property.

Government amendment 1.

Amendment 17, in clause 1, page 2, line 14, at end insert—

“(c) to conduct research,

(d) to engage in intellectual inquiry and contribute to public debate,

(e) to criticise any institution,

(f) to be affiliated to any institution, and

(g) to be a member of a trade union body,”

This amendment would widen the definition of academic freedom.

Government amendments 2 and 3.

Amendment 20, in clause 1, page 2, line 32, after “views” insert “or to share experiences”.

This amendment is consequential on Amendment 19.

Government amendments 4 to 10.

Amendment 18, in clause 8, page 9, line 32, at end insert—

“(3A) In reaching a decision as to the extent to which a free speech complaint is justified, the OfS must be mindful of the following—

(a) the right of students to feel safe on university campuses, and

(b) other legal duties of governing bodies and students’ unions, such as but not limited to those under the Equality Act 2010 and section 26 of the Counter-Terrorism and Security Act 2015.”

This amendment would ensure other competing freedoms as found in the Equality Act and the Counter-Terrorism Act and Security Act 2015 are considered in relation to complaints lodged under the Free Speech Complaints Scheme

Government amendments 11 to 16.

[Michelle Donelan]

I thank all Members for their important contributions throughout the Bill’s consideration. More than two thirds of the world’s population live in countries where academic freedom is severely limited. For decades, people have travelled across the globe to study in the UK because we are one of the few nations in which free, fair and lawful speech at university is truly valued. It is no coincidence that the most academically free countries in the world are also the most socially progressive, the most democratic, the most peaceful and, of course, the most prosperous.

Free speech is as fundamental to what academics and students do on university campuses as it is to what we do in the House. However, as we saw on Second Reading, the Opposition chose to deny that there is a problem at all, despite overwhelming evidence to the contrary. In fact, since we last debated the Bill, the UK has become the only country in the top tier of academically free countries to be significantly downgraded by the academic freedom index. A report published by the Varieties of Democracy Institute determined that despite the UK’s status as a historic bastion of academic freedom and scientific excellence, not only is academic freedom in the UK declining but that decline appears to be accelerating.