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

Michelle Donelan Excerpts

Thursday 16th September 2021 Public Bill Committees

[The Chair]

Thank you.

Clause 1

Duties of registered higher education providers

[The Minister for Universities (Michelle Donelan)]

I beg to move amendment 1, in clause 1, page 3, line 27, after “providers” insert “and their constituent institutions”.

This amendment is consequential on NC1.

[The Chair]

With this it will be convenient to discuss the following:

Government amendments 2 to 26.

Government new clause 1—Duties of constituent institutions.

[Michelle Donelan]

Government amendments 1 to 26 and new clause 1 concern the position of certain colleges of universities such as the Universities of Oxford, Cambridge and Durham. The amendments will ensure that, in these collegiate universities, colleges are subject to the new strengthened freedom of speech and academic freedom duties in the same way as the registered higher education providers themselves. The amendments will restore a legislative position similar to the one in place before August 2019, when constituent colleges of collegiate universities in England were directly responsible for meeting the duties set out in section 43 of the Education (No. 2) Act 1986 to take reasonably practicable steps to ensure freedom of speech for their students, speakers, members and visiting speakers.

The Bill sets out new and strengthened duties; in particular, it introduces direct routes for individuals to seek redress when they believe they have suffered loss as a result of a breach of the duties, so it is vital that action can be taken directly against the body that is responsible, including when that is a college. As the types of college in scope of the amendments may enjoy a large degree of legal independence from their parent provider, it is possible that, without these amendments, a registered provider could demonstrate that they have met their duty in new section A1 of the Higher Education and Research Act 2017 to take steps that are reasonably practicable for it to take to secure freedom of speech, but a college could still act in such a way as to restrict someone’s lawful freedom of speech.

My officials have held discussions with some of the main institutions that will be affected by the amendments, in particular the Universities of Cambridge and of Durham, and they have indicated that they would welcome the amendments. They do not think that they will result in a burdensome change in practice for their colleges, since in general their colleges have continued to maintain the codes of practice relating to the freedom of speech duties that they were subject to until 2019.

The wording used for the definition of “constituent institution” in new clause 1, in proposed new section A3A(4) of the 2017 Act, reflects the wording that applies to those bodies subject to the Prevent duty and the coverage of the complaints scheme operated by the Office of the Independent Adjudicator for Higher Education. A college that is required to comply with the Prevent duty will, therefore, also be subject to the freedom of speech duties, which is clearly sensible, and the coverage of the higher education complaints schemes will be consistent.

In addition, amendment 3 makes it clear that student unions at approved fee cap providers that are subject to the new duties in clause 2 do not include student unions at colleges. Colleges fund their junior and middle common rooms and, to that extent, can exert a lot of control over their activities. Those groups do not own or occupy their own premises or run the booking the systems, so imposing a freedom of speech duty on them seems to be unnecessary and overly bureaucratic. We do not believe that including them in the provision is necessary, as the freedom of speech duties on the colleges will apply to the activities of their student unions. I hope it is clear that the amendments are necessary for the Bill to work as intended, to ensure that all key bodies in our universities play their part in securing freedom of speech on campus, and to ensure that where they do not, those who suffer detriment can seek redress from whomever is responsible, whether that is a university or one of its colleges or student unions.

[Matt Western]

It is a pleasure to see you back in the Chair, Mrs Cummins. Overall, I have to say that I am really delighted—I think all the Opposition Members are—that the Minister has listened intently to what we have been calling for in our speeches on Second Reading, in Committee and during the witness sessions. We have been calling for clarity. It was clear that the Higher Education and Research Act 2017 made a similar mistake by omitting the likes of Oxbridge colleges and constituent institutions.

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That is why we need to ensure that we have these organisations—these constituent institutions—clearly included in the Bill, because, to an extent, there is a sense that they are self-governing. In this respect, they have to understand that they have the same degree of responsibility and accountability as any other university institution.

[Michelle Donelan]

We did indeed listen to the sector and Members after the Bill was first published, and we identified a gap. These technical amendments will close that gap, which could otherwise have meant that some individual colleges would not be in scope. Since the Bill introduces new routes of redress for individuals who believe that their lawful freedom of speech or academic freedom has been improperly restricted, it is vital that the right institutions are held responsible.

To reiterate the points that I made in my opening speech, colleges fund their junior and middle common rooms. To that extent, they can assert a lot of control over their activities. Such groups do not own or occupy their own premises or run the room-booking systems, so imposing the freedom of speech duties on them seems quite unnecessary and overly bureaucratic. The amendments are necessary to ensure that the new duties apply to all appropriate bodies on campus and that the routes of redress in the Bill are available for all who need them.

[Matt Western]

The Minister is being generous in giving way. Essentially, what the Bill saying is that the colleges can exert pressure on their middle and junior common rooms and somehow influence behaviour and how free speech is permitted and managed within those forums. It is a delegation to the colleges to do that. But what the rest of the Bill is saying is that all other student unions, bodies, clubs and affiliates are responsible to the university and have to comply. Are we saying that there will essentially be a two-tier system for how the legislation will work?

[Michelle Donelan]

What we are saying is that the junior and middle common rooms are very different from student unions, and we have to ensure that the legislation strikes the right balance—a point made by the hon. Gentleman when we debated the last amendment on bureaucratic burden.

To conclude, colleges have a vital role in the protection of freedom of speech.

[John McDonnell]

rose—

[Lloyd Russell-Moyle]

rose—

[Michelle Donelan]

I really am going to conclude now, as we must move on. Colleges have a vital role in the protection of freedom of speech, which is a fundamental value for all of society, but especially in our world-leading higher education providers, as I am sure hon. Members agree.

Question put, That the amendment be made.

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[Matt Western]

I thank my hon. Friend for her intervention. In response to a point by the right hon. Member for South Holland and The Deepings about the detransitioning of research at the University of Bath, Professor Whittle said in evidence that

“had Bath addressed it properly, they could have done more to say, ‘This needs sorting and this does before we will consider it.’”––[Official Report, Higher Education (Freedom of Speech) Public Bill Committee, 7 September 2021; c. 41, Q75.]

The amendment would incorporate innovative research under the academic freedom duty, and that would push the likes of the University of Bath towards further exploring how such research proposals could be encouraged. It is a very simple amendment, but we hope that, in the spirit of how we have tried to co-operate, the Government will accept it.

[Michelle Donelan]

This amendment seeks to extend the duty of higher education providers to promote the importance of freedom of speech and academic freedom so that it specifically applies in the conduct of research, as well as in the provision of higher education more generally. The duty set out in proposed new section A3 of the Higher Education and Research Act 2017, created by clause 1 of the Bill, is a new one. It requires a provider to promote the importance of free speech within the law and academic freedom throughout its provision of higher education. This is a general duty that intends to drive a positive tone on campuses across the country, promoting a culture in which everyone on campus can express their lawful views, and in which academics feel safe to question and test received wisdoms and put forward new ideas and controversial or unpopular opinions.

[Emma Hardy]

The amendment is specifically meant to address cases in which an individual is sometimes a student and sometimes a teacher. As a PhD researcher their activity falls under academic freedom, but as a student it falls under freedom of speech. An individual can hold two different roles at two different times depending on what they are doing, and that problem is what we were trying to resolve with this amendment.

[Michelle Donelan]

I think that the next part of my comments will address the hon. Member’s concerns. A key element of this duty is to promote academic freedom for academic staff. It is widely understood and set out in international case law that academics should expect that their academic freedom is protected for any research they seek to undertake, as well as in the design and delivery of their teaching and wider comments or writings that they issue. The duty to promote the importance of academic freedom in the provision of higher education will therefore cover research undertaken in that context, noting the high-level nature of the duty. However, I have listened to hon. Members today, and while this will be made clear in the guidance, I shall commit to take this issue away and see whether further clarity would be of assistance.

[Matt Western]

I have heard what the Minister has to say. I take her at her word and look forward to having further conversations and discussions on this issue. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 33, in clause 1, page 3, line 28, at end insert—

“(2) For the purposes of this section, ‘freedom of speech’ and ‘academic freedom’ do not extend to any statement that amounts to the denial of genocide.”—(Matt Western.)

This amendment ensures that the objective of securing freedom of speech and academic freedom do not cover those who make statements that amount to a denial of genocide.

Question put, That the amendment be made.

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[Matt Western]

My right hon. Friend is right: this is yet another example of how things are well managed by students’ unions up and down the country. They see challenges day in, day out, week in, week out. They manage the various, sometimes conflicting, interests of different groups.

My right hon. Friend has given a simple example of an Islamic prayer room and how that can play out between the Ahmadiyya and other Muslim groups. I urge the Minister to take on board our points and make the changes set out in the amendments. The word “any” is problematic and the Government would do well to remove it.

[Michelle Donelan]

The amendments would narrow the application of the freedom of speech duty in proposed new section A4 on students’ unions so that it only applies, as regards premises, to the “sole” use of those premises and does not apply to the terms of the use of those premises.

Proposed new section A4(1) in clause 2 requires students’ unions to take “reasonably practicable” steps to secure lawful freedom of speech. Proposed new sections A4(3) and A4(4) set out how this duty will work in relation to the use of the premises. The students’ union must take “reasonably practicable” steps so as not to deny the use of their premises because of

“the ideas, beliefs or views”

of an individual body when inviting speakers. That was an excellent point made by my right hon. Friend the Member for South Holland and The Deepings.

A key part of the Bill is the emphasis on “reasonably practicable” steps. On the point that the hon. Member for Brighton, Kemptown made, if a range of rooms was available and some rooms were not suitable, for example because of religious beliefs, it would be “reasonably practicable” not to choose certain rooms. However, I have heard the concerns raised in the debate and the evidence that has been provided, so I will commit to take this important point away.

[Fiona Bruce]

I thank my hon. Friend for her encouraging words. Could she reflect on whether the code of practice is a vehicle that could be used to respect freedom of religion or belief in this context?

[Michelle Donelan]

An important aspect of the Bill is that it does not place freedom of speech above other duties, such as freedom of religion. It is down to the university or students’ union to balance those competing duties and make a reasonable assessment. We think that freedom of speech duties should apply to the terms of use of premises. It would not be right if a students’ union decided, for example, to charge one group more for room hire than another group. In any event, proposed new section A4(3) is clear that the freedom of speech duties include the stated provision on premises, so the exact wording of the amendment would not be likely to have any effect in practice. However, I am happy to reconsider how we could make it clearer in the Bill.

[Emma Hardy]

On the basis of the Minister’s promise to go away and have a look to ensure that we can offer the clarity and reassurance needed, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 34, in clause 2, page 4, line 13, at end insert—

“(4B) The objective under subsection (2) does not apply to any person or body that—

(a) has made any statement in public that amounts to the denial of genocide; or

(b) intends to make any statement that amounts to the denial of genocide within the premises of the students’ union or to any members of the students’ union.”.—(Matt Western.)

This amendment ensures that the duty on students’ unions to secure freedom of speech within the law does not cover those who make statements that amount to a denial of genocide.

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[Lloyd Russell-Moyle]

I am terribly sorry. I did try to reconsider my language. It was a very rude thing to do. “Bloody” should be used only in the sense of the blood that runs through our veins, and nothing else.

It is very rude to invite someone and then disinvite them, and I do not condone anyone who does that, but we have to have equity. We either have to have all societies able to invite and disinvite people, and to be as rude as they want, or we have to say that it is not acceptable in an academic space because it creates a chilling effect, and then we have to say that no society can do that. We cannot have a two-tier system whereby we say, “If you happen to have affiliated to a student union or institution, you get it, but if you set up shop outside and everyone thinks that you’re that society, it is acceptable.” There lies the real danger, but there are options here.

Finally, I want to touch on the role of such unions as the Oxford Union, the Cambridge Union and the Durham Union. They have been real bastions of free speech, and I do not suspect that they would have any problems with the duties covering them, too. We all know that often they have been the ones that have continued to say, “We want all different people to come, debate and talk.” But we cannot create a law based on the long-standing position of the Oxford, Cambridge and Durham unions—to name the most famous but not necessarily best student debating societies in the country—because they have had an historical foundation, whereas almost every other debating union and society in our country is regulated because it forms an affiliated part of an institution. I do not think it is fair that a few ancient universities get different privileges from the newer universities. That is a dangerous division.

We need to ask whether a debating club made up exclusively of students is regulated or not. The Minister needs to make a decision. I hope that she will say that she has accepted the point. She may not agree with the detailed wording, but I hope she says that she will go away and make sure that the provision applies to either all student societies or none, and either all student spaces or none. That should also cover the commercial sector—bodies with whom an institution may have commercial relationships.

[Michelle Donelan]

Any transgression of freedom of speech and academic freedom goes against the fundamental principles of the higher education sector in England. It is therefore essential that our universities are places where freedom of speech can thrive for all staff, students and visiting speakers, so they can contribute to a culture of open and robust intellectual debate. Student unions provide support and services to their members and their universities. It is therefore appropriate and essential that the legislative framework is extended to cover student unions directly.

The extension of the duties imposed only on higher education providers will ensure that freedom of speech is protected to the fullest extent. This will ensure our universities can continue their long and proud history of being a place where views may be freely expressed and debated. Clause 2 will provide the legislative framework to extend these important duties to student unions at approved fee cap providers—a category of registered higher education providers. It will insert two new provisions into the Higher Education and Research Act 2017. Proposed new section A4 provides that student unions will be required to take reasonably practicable steps to secure lawful freedom of speech for their members and staff; for students, members and the staff of the provider; and for visiting speakers.

[Emma Hardy]

May I seek a point of clarification? I will be super-quick.

[Michelle Donelan]

Opposition Members have spoken at great length on this clause, so I will give way only once.

[Emma Hardy]

Thank you. I want clarification about non-affiliated student societies—student societies that are not directly affiliated to the student unions.

[Michelle Donelan]

If the hon. Lady will bear with me, I will come on to student societies.

In deciding what is reasonably practicable, student unions must have particular regard to the importance of freedom of speech. This will allow those involved in all aspects of university life to contribute to a culture of open and robust intellectual debate, without fear of repercussion. Those are new duties, providing new protections and ensuring coverage across campus. Proposed new section A5 will require student unions to maintain a code of practice, which will act as an aid for compliance with the new duty in proposed new section A4.

The code of practice must set out the procedures to be followed when organising meetings and activities, as well as the conduct required in connection with them. That is in addition to the criteria for making decisions about student union support and funding, and who can use premises. The clause sets out the new duties on student unions that are vital for ensuring that freedom of speech is protected to the fullest extent within higher education in England. It is therefore an important and necessary part of this Bill.

New clause 4 would extend the duties on student unions at approved fee cap providers so that they also apply to junior and middle common rooms at colleges and student societies. Taking student bodies at constituent colleges first, the colleges fund their junior and middle common rooms and can exert a high level of control over their activities. We do not believe that imposing the duty on junior and middle common rooms would be appropriate, as they are autonomous, as has been said. Freedom of speech duties would be unnecessary and bureaucratic if applied to junior and middle common rooms. A point was made about booking systems, but even given that junior and common rooms may book rooms, those rooms are owned by colleges and the JCRs have no actual control over them. Given that, we do not believe that including them is necessary as the freedom of speech duties on the colleges will apply to the activities of their student unions. It is important to note that student unions at constituent colleges are not classified as student unions under the Education Act 1994. In addition, the administrative burden on providers to give the Office for Students details of the student unions of their constituent colleges in addition to their own student unions, with the OfS then under a duty to maintain a list of them, monitor their compliance with their duties and deal with them in regulatory terms, as well as under the complaints scheme, would be resource intensive and disproportionate. That point has been made many times by Opposition Members in relation to other issues that have been raised today.

As for student clubs and societies, if they are affiliated to the student union, they will be covered by the student union’s code of practice. If they are not affiliated, they will still be subject to their provider’s code of practice, a point that I think has been missed in today’s debate. For similar reasons to those I have already set out in relation to JCRs and MCRs, we therefore do not think it would be appropriate to extend the duties to cover those clubs and societies directly. I hope that this clarifies the points made, and that we can agree not to accept new clause 4 and to move forward with the rest of the Bill.

[Matt Western]

The debate on these particular points has been really healthy and robust, and my Labour colleagues’ contributions have been extremely important—I particularly note those of my hon. Friend the Member for Brighton, Kemptown. What we have been saying for the last hour or hour and a half is that all we are seeking is consistency in this Bill, and that we cannot afford to have a two-tier higher education system. The words “iniquitous” and “unfair” have been used, but the problem is that either we recognise there is a need for coverage for all bodies and all groups that are exclusively student, as was rightly said, or there is not. The Minister has just said that it would be unnecessary and bureaucratic for this provision to be applied to middle and junior common rooms. We would say that it is unnecessary and bureaucratic for all institutions, irrespective of what they are or their heritage and history, and particularly for the smaller organisations that we keep speaking up for. As is well understood by many of us in this room, the whole higher education sector is incredibly diverse. Many smaller bodies—further education colleges and so on—will not be geared up to sustain these changes.

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[Matt Western]

Mrs Cummins, I am sorry if it was not clear that I was trying to sum up the points that were put so well by my colleagues. The Minister has said that these non-affiliated groups would be covered by these duties, but it is not clear to me or to my colleagues how that will be the case.

[Michelle Donelan]

To clarify, if a non-affiliated group were having an event on a university campus, it would of course be covered under the university’s code of practice.

[Matt Western]

I thank the Minister for her intervention. I do not mean to try her patience; the points we are trying to make are simply an attempt to explore absolutely all eventualities. We have talked about PBSA—purpose-built student accommodation—and the increasing amount of private sector premises on campus and elsewhere that are being used by universities. I can speak from local experience. In Leamington, we have private accommodation that is being used by the student union.

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[Matt Western]

It is exactly that. I will not spin the wheels and repeat exactly what my hon. Friend has said, but perhaps the Minister would like to respond.

[Michelle Donelan]

I appreciate the point that hon. Members are trying to make, but I think it is time to step back and reflect on the consequences of what they are arguing. They are effectively arguing that if a group of students were in their homes, or if they organised an event in a pub, we would have to regulate that. We have to be reasonable about what we are asking universities to regulate and what is in their control.

[Matt Western]

That is the issue, perhaps in part, with the Bill. The Government are trying impose, top down, a series of responsibilities and duties on universities to oversee and implement this legislation. The points we are making are about how many loopholes there are and how groups, particularly well-funded groups and private societies, will disaffiliate from the union and seek other premises in which to practise this sort of speech.