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

Matt Western Excerpts

Wednesday 15th September 2021 Public Bill Committees

[The Chair]

We will now start dealing with amendments. These proceedings are being broadcast, and I think that the best way forward is for people to learn from their mistakes during proceedings, if they make any, rather than for me to remind them of the procedure at the beginning.

Clause 1

Duties of registered higher education providers

[Matt Western (Warwick and Leamington) (Lab)]

I beg to move amendment 50, in clause 1, page 1, line 8, leave out from beginning to “must” and insert:

“Every individual and body of persons concerned in the government or management of a registered higher education provider”.

This amendment expands the duty on a governing body of a registered higher education provider to take steps that are reasonably practicable to secure freedom of speech within the law to include any individual or body of persons concerned in the government or management of a registered higher education provider.

I thank you, Sir Christopher, and your co-Chair, Mrs Cummins, for your chairmanship up to this point. I also thank the Clerks for all their work keeping us in order and for putting everything together.

I have not checked the numbers this morning, but it is interesting that some 84 amendments and counting have been tabled. That underlines the fact that many of us, especially Opposition Members, have profound reservations not only about whether the Bill is needed but about its extent and its detail. If it was a dog’s breakfast before, it looks like a bit of a canine meal plan this morning.

Amendment 50 covers a small but important detail. We are here to be constructive and to try to make the best of the Bill, and this is the first example of that. We are seeking to broaden the meaning of the “governance” of an institution. We do not want it to be too narrow, or to simply mean the senate or board of trustees. Recognising the complex nature of modern higher education institutions, we want the term to reflect the wide array of professionals involved in university administration who should be subject to the legal requirement to uphold freedom of speech and academic freedom

It is important that we recognise the diversification of the management of the HE sector. It seems that the Bill’s wording is a carbon copy of the section 43 duty under the Education (No. 2) Act 1986. We have repeatedly heard from the hon. Member for Congleton about the need to develop the 1986 Act to reflect today’s reality, and that is what the amendment seeks to do.

All we are asking is that the legal duty be expanded to include anyone involved in the government or management of a higher education provider, rather than solely the governing body, as is the case in the Bill as drafted. The definition is far too narrow. It is the wording of yesteryear and does not reflect the complex nature and structure of the governance of the universities and higher education institutions of today. Indeed, Professor Stock said in her evidence that, thanks to the consumer dynamic, universities are presenting their best public relations face to prospective students, and that involves a plethora of people behind the scenes, including human resources professionals. Tom Simpson, likewise, in his evidence, stated:

“At the moment, the crucial question is the position of those involved in university leadership and administration.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 71, Q148.]

We wish to be constructive today and in the coming days, and will do our best to try to refine the Bill to make it workable. We do not believe clause 1 is absolutely necessary, but we will do our best to refine it and make it practical. That is what amendment 50 seeks to do.

[The Minister for Universities (Michelle Donelan)]

I, too, thank the Clerks for their work in facilitating this Committee.

Amendment 50 would reinstate the wording currently in section 43(1) of the Education (No. 2) Act 1986, where the freedom of speech duty applies to individuals and bodies involved in a higher education provider’s governance or management. The approach in the Bill, which is to impose the duty on the provider’s governing body, is taken for a number of reasons. A key plank of the Bill is introducing new enforcement measures, including a new Office for Students complaints scheme and a statutory tort. In the light of the potential for tortious liability, it would not be appropriate for the duties to apply to any individual in that management. It should be the provider that is held responsible by the OfS or the courts. Of course, the provider will generally be liable for the acts of its staff in any event, so the change in emphasis will not necessarily make any difference on the ground. The provider will require its staff to act in accordance with the duty, as it will be held liable for their conduct. This approach mirrors other statutory duties imposed on the governing bodies of higher education providers, for example under the Equality Act 2010. It therefore makes sense for the same body to be responsible for all relevant duties under consideration.

I hope that reassures the Committee that the amendment is not needed. The Bill ensures that responsibility for the freedom of speech duties will lie with higher education providers, and and that where they are found to be in breach of those duties, they can be held to account.

[Matt Western]

I hear what the Minister says, but the amendment is not aimed at every individual in a higher education institution. It is specifically about every individual and body of persons concerned in the government or management of a registered higher education provider. The crucial point is that it absolutely is about those involved in the governance and wider management of the institution, not every individual within that university or higher education institution. I stand by the amendment and wish to push it to a vote.

Question put, That the amendment be made.

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Division 1

Ayes: 5

Noes: 10

[Matt Western]

I beg to move amendment 51, in clause 1, page 1, line 9, leave out “importance” and insert “primacy”.

[The Chair]

With this, it will be convenient to discuss amendment 43, in clause 1, page 1, line 10, after “speech” insert “and academic freedom”.

This amendment would require the governing body of a higher education provider to also have particular regard to the importance of academic freedom.

[Matt Western]

As I said in my opening remarks, I believe that numerous small-detail changes to clause 1 that might make some difference can certainly be made, albeit that we believe that much, if not all, of this has already been written and is already in legislation. Nevertheless, changes can be made that could bring about a certain pragmatism and greater effectiveness to what is being proposed by the Government.

These two amendments involve just a couple of words. Amendment 51 relates to a perhaps slightly nuanced, but none the less important, interpretation. On the first Bill that I examined, I was in the company of the right hon. Member for South Holland and The Deepings, who was leading for the Government on their Bill on electric and autonomous vehicles. Listening to him and to others, I realised just how important language can be. The nuance of language is certainly important in both amendments.

Amendment 43 is quite specific and extremely important. I use the word “important”, and I am just about to examine the word “importance”. It is vital that we understand the significance of the amendment. The amendments address the relative importance of freedom of speech and academic freedom. We heard in the witness sessions that some people speak of a “chilling effect”, and it is interesting how language gets adopted and then becomes an assumed state. I think there is some appreciation that there are concerns out there and that things can and need to improve, but through the amendments I want to consider the weight we place on these two distinguishable concepts in the Bill, which arguably will affect how effective the Bill is at reducing the issues described by various witnesses.

Amendment 51 stresses the “primacy” of freedom of speech. Clause 1 inserts in the Higher Education and Research Act 2017 new part A1, which stresses that to secure freedom of speech within the law:

“The governing body of a registered higher education provider must take the steps that, having particular regard to the importance of freedom of speech, are reasonably practicable”.

“Importance” is such an important word. Often, it is overly important and very subjective. What does it actually bring? As we heard during the evidence sessions, the importance that one person places on freedom of speech can vary, whether it be unparalleled—I am thinking of the evidence we heard from Professor Goodwin, and his desire to invite fascist groups such as the National Front to speak on campus, infringing upon the wellbeing of minority students—or limited. On the latter, I am thinking of the evidence from the vice-president of the National Union of Students, Hillary Gyebi-Ababi, and her explanation of the NUS no-platform policy for six proscribed bodies.

That is vague and subjective. We all think we know what is meant by importance or important, but how often have we read that something is important, when in fact we viewed it as not being so? That is why the concept of mere importance may be deemed to be too low a threshold. I propose to address that by elevating the threshold to one that is more objective and more concrete by using the word “primacy”.

In the oral evidence sessions, Professor Nigel Biggar, the Government’s own witness, addressed the concerns that freedom of speech would take primacy over academic freedom when the duty is balanced in practice. That is what I am seeking to address with my amendment. When asked by my hon. Friend the Member for Kingston upon Hull West and Hessle whether he would recommend that the Bill as written should deal with that imbalance, he replied: “Yes, I would.” That is pretty categoric. Primacy is absolute; that is the important thing. “Importance” is a value term, and that is why we will be pressing for “primacy” to be in the Bill.

Let me turn to amendment 43. Academic freedom and freedom of speech are of course interdependent, but they are also independent concepts. To avoid an imbalance of one in favour of the other, the values of both should be elevated to prime status, recognising the importance of both concepts simultaneously working with each other. That would address the policy objectives outlined by the Government in their Department for Education impact assessment: first, to

“embed principles that enable students, staff and visiting speakers to feel actively encouraged to express, debate and expand their views on campus”

and, secondly, to ensure that

“staff are able to exercise freedom to question and test received wisdom”.

I believe that the two amendments are equally important, establishing primacy versus importance, but also stressing the vital nature of freedom of speech and addressing through this the policy objectives as outlined by the Government’s own Department for Education.

[Emma Hardy (Kingston upon Hull West and Hessle) (Lab)]

I thank all the Clerks for the work they have done on the amendments. I

Academic freedom came up from our witnesses time and again. I joked about it, but it is a truth that I managed to unite differing academics with wildly different opinions on many different issues on a single point: they all agreed that academic freedom was important and therefore should be on the face of the Bill. I will not keep the Committee long, but I am going to quote three of them.

Professor Stock “took it as implicit” that academic freedom was included within freedom of speech, but agreed that it was

“a bit confusing that ‘freedom of speech’ is the phrase.”

She went on to say that

“in terms of drafting, that could be clarified.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 12, Q20.]

When I asked whether we should have academic freedom in the Bill, she was supportive of the idea. Dr Ahmed agreed that if academic freedom was to be genuinely protected, it needed to be more explicit in the Bill. That was another of the Government’s witnesses.

Professor Biggar, another of the Government’s witnesses, said that

“academic freedom needs to have equal standing, because free speech and academic freedom are not the same things.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 29, Q54.]

He recommended that the imbalance in the Bill as written—that is, mentioning only freedom of speech—be addressed. He agreed with Taylor Vinters, whose submission has been referred to, that it was

“arguable that freedom of speech would take primacy over academic freedom when the duty is balanced in practice”.

I hope that the Government will listen to their own witnesses who gave evidence on the importance of having both freedom of speech and academic freedom.

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[Michelle Donelan]

The director and the OfS will be publishing their own guidance, and it would not be appropriate for me to pre-empt that. I would, however, expect there to be a reference to academic freedom within that guidance. I hope the Committee is reassured that the Bill strikes the right balance.

[Matt Western]

I thank my colleagues for their contributions, which flesh out these points. As my right hon. Friend the Member for Hayes and Harlington said, we have approached this Committee in a spirit of co-operation and constructive thought, to try and improve the Bill. As my hon. Friend the Member for Kingston upon Hull West and Hessle said, there was a surprising, perhaps staggering, consensus from the witnesses about the need to clarify the importance of academic freedom, from whichever side we sit on. The Minister may be right that academic freedom technically falls within freedom of speech, but this is a higher education Bill—legislation about higher education—so surely the emphasis must be on how freedom of speech relates to higher education. I urge us as a Committee to stress the importance of academic freedom in the Bill and give real emphasis to it.

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[Sir John Hayes]

I am grateful to the right hon. Gentleman. Like him, I certainly never compromised on what I believe.

On the point that was made—I invite the hon. Gentleman to acknowledge this—these things, generally speaking, are dealt with in guidance, as the Minister said, for the very reason that once the Bill becomes an Act, as we hope it will, and it beds down, we will need to refine precisely how universities interpret it, and the guidance will reflect that continuing work. I therefore think we have got a win in the Minister saying that she would expect the guidance to include that, and we should take that win and move on.

[Matt Western]

I thank the right hon. Gentleman for that intervention. I genuinely respect him and would like to accept his point. However, I have profound concerns over the direction of the Office for Students and its leadership. He said that generally these things are put in place, but “generally” is not good enough for me, and I do not think it can be for any of us today.

[Lloyd Russell-Moyle]

Most pre-1984 universities have a reference in their charter to academic freedom as opposed to freedom of speech, and most post-’84 universities have it within their other governing documents. Is it not therefore important that the wording in the Bill reflects those governing documents, or at least ensures a clear dovetail, rather than leaving it ambiguous, which might cause greater problems, particularly if, as we know, the charter is used quite often in employment law and tribunals? These provisions, according to evidence that we heard, need to dovetail better into that process.

[Matt Western]

My hon. Friend is right. His knowledge and experience in these matters greatly exceed mine, so I thank him for bringing that to the table.

The Minister said that she would expect the guidance to include academic freedom. Again, I cannot accept that “generally” or “expect” is good enough when it is so fundamental, vital and central to the work and role of our higher education institutions and academics. As my hon. Friend said in his intervention, the words “academic freedom” are written into the governance of universities and higher education institutions.

We are here to be constructive. I cannot stress that point enough. We accept that there is a huge majority on the Government side. They can do as they wish, but we are here for the coming four days to be constructive and to try to make the best of what we think is very poor legislation. I wish to press the matter to a vote.

Question put, That the amendment be made.

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Division 3

Ayes: 7

Noes: 10

[Matt Western]

I beg to move amendment 52, in clause 1, page 1, line 18, after “premises” insert “or online platforms”.

This amendment expands the objective of securing freedom of speech within the law for staff, members, students and visiting speakers to include securing the use of online platforms.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 31, in clause 1, page 1, line 18, after the second “of” insert “or occupied by”.

This amendment expands the duty on higher education providers to not deny the use of any premises, including premises occupied by the provider, to the staff of the provider, the members of the provider, the students of the provider and visiting speakers.

Amendment 53, in clause 1, page 2, line 6, at end insert—

“(c) The financial cost of providing physical security for any individual or body, except where such a cost would be greatly disproportionate.

(4A) In circumstances where subsection (c) applies, the provider must ensure that an online platform can be used as an alternative.”

This amendment would ensure that the use of premises and the terms on which those premises are used are not limited by financial security costs, save where the costs would be disproportionate. In the event the costs are disproportionate, an alternative online platform has to be found by the provider.

[Matt Western]

I may be bloodied, but I am unbowed. We press on.

I wish to speak in favour of all the amendments in the group. They seek to expand the free speech duty to online platforms, if that is where a speaker is being posted. This is pretty common-sense stuff, given that the past 18 or 19 months of the covid-19 pandemic have fundamentally changed the nature of teaching and hosting events. All of us in the Committee appreciate that online events have become almost a de facto norm when face-to-face meetings for teaching or other events have not been possible over this past year and a half.

That is the same for higher education settings. As we approach the new academic year, increased numbers of student are arriving on campus, following all the changes made to A-level examinations, placing greater pressures on our universities and higher education institutions to meet higher capacity needs, with real pressures arising where they are unable to, and also to support venues where there is insufficient ventilation. Online is therefore an important part of what happens in higher education, whether we like it or not. Some see it as a progressive change, while others might see it as unwanted, but on balance most would accept that it has enhanced the possibilities of higher education provision.

Amendment 52 reflects the fact that many meetings and events will continue to be held online and would ensure that the same law applying to those held in person on university premises would rightly apply to those held online. Clearly, we cannot and should not create a two-tier system where in-person meetings are required to uphold free speech—and yet people have to jump through hoops to facilitate that—while online meetings go unregulated. Professor Stock believes that

“the traditional problem of academic freedom has expanded. Several relevant factors are now in play that were not before, including the internet, which is the most obvious one, social media, academics being encouraged to engage online”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 5, Q1.]

I did not necessarily agree with a great deal of what Bryn Harris of the Free Speech Union had to say, but I entirely accept his point that

“There needs to be a joined-up approach between the various instances of reform. The danger is that we end up with an anomaly. For example, Twitter’s house rules under the online safety Bill will have to be consistent with Ofcom codes of practice. There is a danger that something might be perfectly allowable under Twitter’s house rules, but unlawful in some other way.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 82, Q174.]

In fact, the whole Online Safety Bill is a very important part of what we have been discussing in this Bill: it is fundamental to some of the issues faced by academics, students and wider society when it comes to what free speech is.

The DFE’s own impact assessment stated that one of the policy objectives was

“to embed principles that enable students, staff and visiting speakers to feel actively encouraged to express, debate and expand their views on campus and online, within the law”.

In turn, the Regulatory Policy Committee’s review of the impact assessment commented—quite rightly, as this is so important—that

“The IA should discuss how the proposal interacts with other government policies and proposals such as those relating to online harms.”

To address and relate to online harms, beyond the premises where we can have issues—I mentioned Dr Bryn Harris—surely the duty should be extended to the online sphere as well. It seems anomalous for the Government not to wish to incentivise holding online instead of in-person meetings and for them not to accept the amendment. I very much hope that they will see that the amendment introduces a constructive, small detail that aims to improve the legislation in a way highlighted by the impact assessment of the DfE itself. The idea that the online sphere should be included has come from within the Government.

Amendment 53 seeks to build on amendment 52. It would ensure that when the financial costs of hosting speakers were unreasonable and disproportionate, a suitable online platform would have to be provided as an alternative. We have seen over the past year and a half how easily that can be done. Costs are much lower and more people can access the events. It gets around the significant costs of hosting an event.

The truth is that the cancellation of events on campuses has been incredibly rare. Since I assumed this role six months ago, I have been talking to universities and student unions. They have raised certain concerns with me, particularly about when the costs of accommodating a person on campus become prohibitive. Typically, that relates to the security costs of posting that—the security of individuals involved as well as the wider safety of those on campus. There was the case, to which frequent reference has been made, of the former Israeli ambassador, Mark Regev, who was prevented, I believe, from speaking at one university. I think we were talking about a five-figure number for costs. Security costs, whether they are established by the embassy or whether the police deem that a certain level of security is needed for the safety of the speaker and attendees, can be considerable, and I want to come on to that. For student societies, these are significant sums of money—as I said, they can be five-figure sums. When we think of higher education institutions it is all too easy to think of the larger providers where these events are perhaps more typical, but the legislation covers all higher education institutions, many of which have just a few hundred students.

Universities UK produced a report in 2011 entitled “Freedom of speech on campus”, in which it recommended that universities should have someone who was responsible for campus security and who would ensure that those making decisions based on campus security, academic freedom and freedom of speech were all aware of existing legislative duties. It is out there—there should be someone doing that, and they would be there to establish the impact, risk or threat of such an event.

Dr Bryn Harris, in his evidence, said:

“Ideally, what we would see here is an elaboration of what ‘reasonably practicable steps’ means. You could say it shall include a duty to cover such security costs as are necessary to enable an event to take place safely.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 79, Q166.]

While that comment is in relation to proposed new part A1, there is clearly support among Government witnesses for not allowing security costs to impinge on the duty to secure freedom of speech.

Perhaps the inclusion of an upper bar of disproportionate costs is required, because it is not right that costs should never limit the restriction of an event. I believe that that should be determined by each institution—each higher education provider. It should be within their gift to decide what is reasonable with regard to affording security and safety, which is of paramount importance to them as an establishment. Relevant in that regard is the case cited by Bryn Harris of R v. The University of Southampton, in which an administrative court struck out a judicial review claim of the university’s decision to pull an event, given the risks of holding it. Costs were deemed to justify interference with the claimant’s rights. Our amendment would ensure that if in-person events cannot go ahead due to sizeable costs, an online event must be facilitated instead, thereby ensuring that freedom of speech can be exercised. It would also ensure that public safety is paramount.

Amendment 31 addresses the issue of what constitutes premises. We clearly wish to extend the provision to the online forum, but there are still questions to be asked about how that would apply to the myriad premises that universities can occupy under various contractual arrangements. Universities are not uniform places. Trusts may have premises on site, or have other premises that may be used by universities. Private companies may also have facilities and premises that can be used by the university. Going back to the point that we are here in the spirit of trying to improve the legislation, making the change about premises “occupied by” rather than necessarily being owned by a university is an important tweak to the legislation, to ensure that all those sorts of premises are included in the remit of the Bill. It would address the subcontracting and private bodies that are used to facilitate student services, such as the absolute explosion in the private provision of student halls of residence that we are seeing across the country.

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[Sir John Hayes]

I very much welcome the tone that the hon. Member for Warwick and Leamington has adopted this morning, following the advice of his senior colleague—he is senior in so many ways—the right hon. Member for Hayes and Harlington. In particular, the hon. Gentleman made a profoundly important point about the online transmission of information, because of course that is pertinent given the events of the past couple of years. Many universities have taught exclusively online. Seminars and lectures have been provided by that means by necessity. Others have adopted a more flexible approach, and so on.

Nevertheless, mindful of that, I think the hon. Gentleman makes a good point. This is an improvement to the Bill. I had not given it as much consideration as I might have done until I read his amendment and heard him articulate it, but it seems self-evidently an improvement to the spirit and tone of what the Government are hoping to achieve. Far be it for me to teach the Minister to do her job—if I start doing that, I will get chastised by both her and my Whip, no doubt—but this is a very good example of where a Bill can be improved by sensible Opposition amendments. I hope we will have a lot more sensible amendments from them, and no wrecking or destructive ones.

[Matt Western]

I very much welcome the right hon. Gentleman’s tone, too, and I thank him for it. This is absolutely about trying to do the best. I described the Bill as a bit of a dog’s breakfast. I do not know whether, in his experience, he has had a 17-page Bill to which so many amendments have been tabled, but this is certainly the first time I have come across quite so many per page. I would also welcome the right hon. Gentleman’s comments on amendment 31, which he is perhaps about to move on to.

[Sir John Hayes]

I am coming to that. The hon. Gentleman anticipates my next contribution—which will be brief, I hasten to add. I think that the point he makes with amendment 31 is also good. He is right that where universities deliver what they do is not a simple matter, not just because of the changes in technology and the way in which they operate, but in other respects as well. There are many premises, many different kinds of operators and many people involved in the university community. That has become increasingly true over time, and again I think the hon. Gentleman makes an extremely reasonable and valid point. I have been inspired by the right hon. Member for Hayes and Harlington to embrace the spirit of collaboration and helpfulness, and I hope that the Minister will do so, too.

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Higher education providers should not be no-platforming by the back door. The Bill already requires providers to take “reasonably practicable” steps to secure freedom of speech, and that duty will apply when providers are making decisions around security costs for the use of such premises. Notwithstanding that, I have heard and noted the reasonable concerns raised by hon. Members about amendment 53 and I commit to the Committee to look at this. I hope that will reassure the Committee that the amendments are not necessary.

[Matt Western]

I thank those on both sides of the Committee who contributed to the debate. I think where we are coming from is increasingly being understood as constructive. If we were working through this legislation in September 2019, there would be a lot of stuff that we had not imagined would be required. These amendments seek to future-proof what might happen in the future evolution of higher education. Forty years ago, they might have been these fixed, established, campus-based city centre location universities. They had not spread and assumed sites in Singapore or other towns in the UK. They were not renting spaces and they did not have the plethora of private property that there is on campuses today. It was a very different situation. We need to think about how higher education has evolved over the last year and a half and how it will continue to evolve.

As my right hon. Friend the Member for Hayes and Harlington alluded to, mischievous organisations, societies or whatever we want to call them might seek out venues located within a premise or site that they knew would not be within the letter of the law of this legislation. I agree entirely that leaving so much to guidance must be a concern for us all. We are here, as parliamentarians, to make legislation and set policy, and I do not think it is healthy for too much to be left in the remit of, say, one individual, as would be the case with a director for freedom of speech and academic freedom.

I also agree with the point raised by my right hon. Friend the Member for North Durham. I think he was referring to the point that, as was suggested by certain witnesses in our evidence sessions, this guidance will be laid down by a person who is likely to be a political appointee and therefore the way that this guidance is formulated is extremely important. That is why more detail must be included in the legislation; and if that does not happen in this place, I am sure that the House of Lords will seek to do that.

I take on board the Minister’s positive comments, particularly on amendment 53. However, I would like to press amendment 52 to a vote.

Question put, That the amendment be made.

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[The Chair]

Does the shadow Minister wish to move amendment 31?

[Matt Western]

I take the Minister at her word and look forward to being able to work with her. At this point, I do not wish to move the amendment.

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[Matt Western]

I echo the comments of colleagues, who have made the case so well. We have profound concerns about the amendment, I am afraid. We understand what it is trying to do, but it could be very broad if accepted as it is. On Second Reading, the Secretary of State made it crystal clear that

“the right to lawful free speech will remain balanced by the important safeguards against harassment, abuse and threats of violence as set out in the Equality Act 2010”.—[Official Report, 12 July 2021; Vol. 699, c. 49.]

The amendment could strip out that safeguard of harassment protection. The Minister, too, stressed the point on Second Reading. She said:

“To be absolutely clear, the Bill does not override the existing duties under the Equality Act regarding harassment and unlawful discrimination.”—[Official Report, 12 July 2021; Vol. 699, c. 120.]

We should be very careful about the existing duties, and we need to ensure that they are protected in future as well. That could be a real problem for us, if the Bill is amended.

Professor Stephen Whittle said:

“The Equality Act provides little protection for anybody who feels that their rights are being disturbed by somebody else’s freedom of speech. For example, if somebody is speaking and they are antisemitic, unless it directly relates to that person, unless they have some sort of standing, the Equality Act cannot protect them as such.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 43-44, Q80.]

The Equality Act is already a fairly flimsy tool for interfering with freedom of speech, so I really want to know why the amendment should so brutally cut the legs from under the Act’s harassment provisions. Even Bryn Harris commented:

“I accept that getting into the Equality Act is very controversial and tricky terrain”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 80, Q168.]

I fear the Government’s approach is a bit of a sledgehammer to crack a nut. The concern is about a fundamental change to the Equality Act. As the right hon. Member for South Holland and The Deepings said, universities are trying to do, or should do, the right thing. That is what has always been sought. In one evidence session, Professor Grant referred to the Chicago principles, under which a university can restrict expression that violates the law, that falsely defames a specific individual, or that constitutes a genuine threat or harassment. The amendment would be counter to those principles, which is why we will oppose it.

[Michelle Donelan]

Amendment 71 seeks to override the law on harassment so that higher education providers would be required to take reasonably practicable steps to secure freedom of speech in scientific or academic discussions, even where that would constitute harassment under the Equality Act 2010. Freedom of speech, which generates rigorous debate and advances understanding, is vital. To uphold freedom of speech in higher education, students, staff and members must be able to express their ideas within the law that may be controversial, unpalatable or even deeply offensive. That is how students develop the ability to think critically, to challenge extremist narratives and to put forward new and controversial ideas.

As is the case now, providers must consider each case on its own facts, and work collaboratively with those involved to ensure that there is an appropriate balance across the range of relevant duties, including in relation to equality protections. It is already the case that, when considering a claim of harassment, courts and tribunals must balance competing rights on the facts of a particular case, which could include the rights of freedom of expression, as set out in article 10, and academic freedom. Guidance has made it clear that the harassment provision within the Equality Act cannot be used to undermine academic freedom. I expect that that will be reiterated in the new Office for Students guidance.

Students’ learning experience may include exposure to course material, discussion or speakers’ views that they find offensive or unacceptable. That is very unlikely to be considered harassment under the Equality Act. Also, if the subject matter of a talk is clear from the material promoting an event, people who attend are very unlikely to succeed in a claim for harassment arising from views expressed by the speaker. At the same time, if speech does constitute harassment, it should not be tolerated, even in the context of academic discussion in higher education. Any form of harassment is abhorrent and unacceptable anywhere in our society, including in universities. It is vital that the Bill makes clear that it protects only lawful free speech. Although I hugely respect my right hon. Friend the Member for South Holland and The Deepings—as, it seems, does the Committee—I must ask the Committee to agree that the amendment is unnecessary. The Bill meaningfully strengthens protections for lawful freedom of speech and academic freedom.

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[Sir John Hayes]

With that hearty recognition of my point, I will happily withdraw the amendment. I take the points that have been made on both sides of the Committee about how vital it is to protect students from all the things that I think we would all regard as fundamentally unacceptable. In the light of the comments from Professor Biggar and others on the need to get the balance right, and with the Minister’s assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Matt Western]

I beg to move amendment 55, in clause 1, page 2, line 7, at end insert—

“members and visiting academic speakers”

This amendment would ensure that the objective of securing freedom of speech within the law includes securing the academic freedom of members and visiting academic speakers.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 29, in clause 1, page 2, line 36, at end insert—

“references to “members of the provider” include any affiliated academics and any other person holding an academic position at the provider;”

This amendment widens the definition of academic members to include affiliated academics and other individuals holding academic positions at higher education providers.

Amendment 56, in clause 1, page 2, line 36, at end insert—

‘“visiting academic speaker” shall mean any individual who is an academic member of another registered education provider or equivalent institution or organisation.’

This amendment defines academic visiting speaker.

[Matt Western]

I am conscious of time so I will not spend too much of it on this. I really hope that amendment 55 is yet another constructive, common-sense tweak to the Bill, to ensure that there is comprehensive coverage of who a member or speaker may be. The amendment would ensure that the protection of academic freedom is provided to academic speakers as well. Many of the events that the legislation covers are most relevant to external speakers, so it should be very clear and obvious that the amendment should be included. If the Government are seeking an end to no-platforming, we need to ensure that existing academic speakers are included in that.

Tom Simpson put it this way in his evidence:

“The coverage of the duty is currently specified as the staff of the provider, members, students and visiting speakers. In academic life, there is a really important category of what you might call affiliated academics”.––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 67, Q136.]

That is quite obvious. Increasingly, there are many more guest scholars or people on visiting fellowships who are not necessarily members of the university. Currently, the wording does not make it plain that such people would be included, and they need to be.

The issue has also been raised with me by various representative bodies and institutions, and they urge that my amendments 55 and 56, which define a “visiting academic speaker”, be included. The amendments are not controversial; they are common sense, and I hope that they will be adopted by the Government.

[Fiona Bruce (Congleton) (Con)]

I tabled amendment 29, as other Members have tabled other amendments, on a constructive basis, seeking to improve a Bill that I strongly support.

Amendment 29 would clarify that

“references to “members of the provider”—

that is, the higher academic provider—

“include any affiliated academics and any other person holding an academic position at the provider”.

Why is this important? It is to ensure that those who are undoubtedly intended to be covered by the Bill, such as visiting fellows, research associates, life fellows, guest scholars and emeritus fellows do not fall outside the scope of the Bill’s protection. Many within the higher education sector would not view these categories of affiliated academics as “members”, on the basis of what I understand is a commonly accepted understanding of that word. The simple remedy provided by amendment 29 would be to clarify and broaden the meaning of “members” to include affiliated academics and anyone held to be occupying an academic position within the university.

I will just refer to two remarks from witnesses who gave evidence to the Committee. Associate Professor Tom Simpson told the Committee:

“In academic life, there is a really important category of what you might call affiliated academics—people with visiting fellowships or emeritus professorships, guest scholars or life fellows. The wording does not make it plain that such people would be included.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 67, Q136.]

And Professor Matthew Goodwin told us of academics being “disinvited from workshops”, who I rather think might not necessarily be a member of the higher academic provider, when he said that

“speaking out about issues that go against the monoculture in many of our universities comes with very real consequences, and I know that from the many emails that I have received from junior academics and members of staff at universities who simply feel unable to voice their true views on those issues because they are fearful of what will happen to their careers. Indeed, in some cases—including friends of mine—they have been sacked or disinvited from workshops.”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 13 September 2021; c. 91, Q185.]

I do not propose to press this amendment to a vote, but I hope that the Minister will confirm in her closing remarks that she will consider taking this matter away for consideration as the Bill progresses through the House.

--- Later in debate ---

[Michelle Donelan]

Importantly, they will be covered by the overarching protections in relation to freedom of speech when they speak at other institutions. As for members, they are specifically covered under proposed new part A1(2). Strasbourg case law has confirmed that, in determining whether speech has an academic element, it is necessary to establish whether the speaker can be considered an academic. To the extent that a member of a university could also come within the category of academic staff will be a question of fact. Quite simply, if they are covered they will have academic freedom as defined in the Bill. I hope that reassures members of the Committee that these amendments are not needed, as the members and types of academics mentioned can already be assured that they will be protected under the Bill.

[Matt Western]

I am reassured by what the Minister says. It seems there is coverage for visiting academic speakers. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That the debate be now adjourned.—(Michael Tomlinson.)