Higher Education (Freedom of Speech) Bill (Tenth sitting)

John McDonnell Excerpts

Monday 20th September 2021 Public Bill Committees

[Matt Western]

The frustration from right across the sector is that there has not been more consultation, discussion and engagement about the issue and how to address it, and how to deliver legislation that might be workable across the sector with the representative bodies, the Government and so on.

My concern is that this measure is another example of how the matter has been left wide open, and that is problematic for the bodies—in this case, the National Union of Students and the various student unions. In the short time that I have had in terms of exposure to the sector, I say to the Minister that it has a profound and growing distrust of the Government because of this legislation. It feels as though the sanctions have been designed to damage or nullify student unions. On that note, I will sit down.

[John McDonnell (Hayes and Harlington) (Lab)]

I make this simple point. Like my hon. Friend, I have met the National Union of Students to talk about the legislation. One question asked was, “What have the Government got against young people?”, because this seems to be an attack on an organisation that young people rely on. I do not understand it. If the legislation is to act as a deterrent against poor behaviour, the Government need to set out what the deterrence is. If there is an element of risk if procedures are not adhered to, that needs to be set out. Normally when introducing sanctions, at least there is a tariff system of some sort. In this legislation, there is no tariff. We are completely in the dark.

The obvious solution is to simply consult people about what the levels should be and how they should relate to certain types of behaviour. In normal circumstances when we impose sanctions, that is what Governments do. Even when it comes to criminal sanctions, there is extensive consultation. Certainly when they introduce civil elements of a sanction, there is detailed consultation throughout with the relevant parties, but that has not taken place in this case. All the amendment would do is ask the Government to sit down with the relevant bodies that will be affected so that they can agree, or at least be consulted on, the nature and level of the sanctions that will be introduced, and—we have referred to this in previous debates—a realistic maximum that does not break the institutions that the Government seek to work with.

When the Government introduce contentious legislation such as this, it is best to take people and the organisations that will be affected with them. The best way of doing that is to engage them in consultation and discussion about the detail of the legislation as it is rolled out. I hope the Minister can give us some assurances—

[Lloyd Russell-Moyle (Brighton, Kemptown) (Lab/Co-op)]

It is important to set out in this Bill the thresholds of the compensation that can be paid because that will also help the court process. We heard in evidence that a large amount of the cost to the court could come from arguments and wrangling about what the actual damage cost is. If that is laid out by the OfS, that reduces the burden of the cost to the courts.

--- Later in debate ---

[John McDonnell]

There is the process of the tort, the process of the civil actions that will take place and the process of the monetary penalties imposed by the OfS. The courts eventually, after precedents have been set, will arrive at some level of compensation. Unless we can set out a legal tariff early on, it will be up to the courts and anything could happen.

[Emma Hardy]

Maybe I am unfairly anticipating what the Minister will say, but I assume it will involve the words “guidance”, “waiting” and “after the Bill”—perhaps not in that order. Therefore, if this will be looked at in guidance after the Bill in consultation, does my right hon. Friend agree that it should be put in the Bill right now?

[John McDonnell]

Confidence in legislation is secured through engagement, consultation and, where there is disagreement, an understanding to disagree. Then when the Bill is taken to the Floor of the Commons, the confidence of Members has been gained because there has been that thorough consultation. Unless that is done, Members are voting for a pig in a poke. Unless the detail of the regime is set out—in particular, the tariffs and what the maximum will be—how can people vote for this legislation, knowing what its implications are?

To go back to the point that my hon. Friend the Member for Brighton, Kemptown made, let us distinguish between what the courts will do—they will set the level in due course through precedent and so on—and the scheme. The sanctions, the tariffs and the maximum monetary penalties are to be set by the Government. I therefore make the very simple point that when Governments set tariffs in this way, to gain the confidence of the House it is usually best to explain what the tariffs will be.

[Emma Hardy]

Again, to stress the point about consultation, as I was trying to explain previously, if this is not done in consultation with student unions, especially small student unions at smaller higher education institutions, this will bankrupt them. I am sure the Minister does not wish to be the person responsible for the bankruptcy of a number of student unions up and down the country. I therefore advise that the consultation and guidance be done before Members of Parliament get to vote on the final Bill.

[John McDonnell]

It is just the simple approach of talking to student unions and saying, “What effect would this tariff have on you? Would it push you over the edge? Would it bankrupt you? Is this an appropriate sanction? Would it act as a deterrent? Would people appreciate the risk that they are undertaking by non-compliance with the OfS’s requirements on these individual bodies?” Universities and student unions will almost certainly be consulting their insurance providers about the potential risk and the level by which they have to insure themselves to ensure that they, quite properly, exercise their fiduciary duty of protecting their organisation in the light of that risk. How can they do that if they do not know what is coming at them down that tunnel? The light that is coming at them could be a huge train hitting them with a huge fine.

[Matt Western]

I could not agree more. As my right hon. Friend described it—he has years of experience in this place—the concern is about how we go through the process of devising and constructing legislation by using a collaborative approach. If we do not pursue that, it could readily be interpreted as wishing to intimidate student unions, which is my real fear. The Bill is designed to act as a big, stamping foot and say, “We’re not going to tolerate this kind of behaviour any longer.” The Government could simply have created a schedule and worked with the student union bodies to devise what the implications might be for insurance, as my right hon. Friend describes, and what would be a proportionate way to introduce some kind of sanctions scheme.

[John McDonnell]

That is what generated my question. Why are the Government targeting young people in this way? It would not take much for the Minister to go away and to come back and give the House an indication, at least before Report, of the types and level of sanctions the Government are considering. When the Bill goes to the other place, there will be some insistence on that.

It is very rare for this House not to have some indication of the scale of a sanction that is being introduced in criminal or civil law, because it is seen as unfair. In both the Commons and the other place, there has been a consistent standard of behaviour: when the Government impose sanctions they undertake considerable consultation, so that people have confidence in the legislation that is passed, and in the institution that will adjudicate on the monetary penalties levied. I speak as someone who has been trying to amend Government legislation for about 23 years, even when my own party was in Government. It is a very simple point—nothing more than that—but it is important and is at the heart of the legislation.

[Michelle Donelan]

Under the amendment, that the monetary penalty that the Office for Students can impose on student unions for breach of their duty to protect freedom of speech will be subject to a maximum amount, set by the OfS and decided following consultation with representative bodies of higher education providers and student unions. However, the Bill already provides that the amount of the monetary penalty is to be decided by the OfS, in accordance with regulations made by the Secretary of State; the regulations will of course be subject to parliamentary scrutiny. This mirrors the approach taken in section 15 of the Higher Education and Research Act 2017 on monetary penalties imposed on higher education providers.

--- Later in debate ---

[Michelle Donelan]

I will make some progress.

[John McDonnell]

Can I help the Minister on that point?

[Michelle Donelan]

I will give way to the right hon. Gentleman, but if I can then make some progress, I might actually answer some of the Opposition’s questions.

[John McDonnell]

What would be helpful—before Report, at least—is to have some discussion on the draft regulations. I understand that it is not possible to publish the regulations formally, but we could have a discussion on the draft regulations before Report, so that Members can at least be assured of the range that the Government are thinking about with regards to the monetary penalties.